Pau Duman / Intellectual Property Rights / Prof.
Amador / Page 1
IPL 134 Trademarks
Prof. Vicente B. Amador
Senior Partner
Sycip Salazar Hernandez & Gatmaitan
Acquisition of marks by Registration
SECTION 122. How Marks are Acquired. - The rights
in a mark shall be acquired through registration made
validly in accordance with the provisions of this law. (Sec. 2-
A, R A. No. 166a)
Maintaining trademark rights through actual use
124.2. The applicant or the registrant shall file a declaration
of actual use of the mark with evidence to that effect, as
prescribed by the Regulations within three (3) years from
the filing date of the application. Otherwise, the application
shall be refused or the mark shall be removed from the
Register by the Director.
124.3. One (1) application may relate to several goods
and/or services, whether they belong to one (l) class or to
several classes of the Nice Classification.
Developers Group of Companies, Inc. vs. Shangri-la
International Hotel Management, Inc. et. al. CA- G. R. CV
No. 53351
Developers is the registered owner of the mark Shangri-La
and S Logo in the Philippines under Regn. No. 31904 issued
on May 31, 1983, which it started using in 1982.
SIHM is the beneficial owner of the Shangri-La and the S
Logo, which it started using in 1962 as part of its corporate
name and as a mark for its hotels starting in 1975. It
claims that this mark is internationally well-known and is
protected under the Paris Convention.
1. Issue: Real Party in Interest?
“SLIHM is not the owner of the Shangri-la hotels, but
through a licensing agreement, operates the same hotels.
Logically, a member of a group of companies cannot claim
ownership over the alleged properties of its mother
company or any member of the conglomeration, which has
distinct and separate personality of its own. Thus,
defendant SLIM cannot claim to legally own the subject
Shangri-la trademark and S-logo by virtue of the alleged
ownership of the same by Kuok Group.”
2. Issue: Is there trademark infringement?
“Granting that Kuok’s use of the Shangri-law tradename and
S-Logo since 1962 benefits defendant-appellant SLIHM as a
member of the conglomerate, the same is not the actual use
required under Republic Act No. 166. The law requires the
actual use in commerce of the said tradename and S-Logo
in the Philippines. The bulk of defendants-appellants’
evidence show that the alleged use of the Shangri-la
tradename was done abroad and not in the Philippines. The
name Shangri-la was only actually used in the Philippines
when the hotels with the same name were constructed in
1987. Defendants-appellants’ actual use in commerce of the
subject tradename and S-logo in the Philippines commenced
only in 1987.
The alleged defendants-appellants’ publication of
advertisement worldwide is unavailing. To reiterate the
Supreme Court ruling – Such right grows out of their actual
use. Adoption is not use. One may make advertisements,

issue circulars, give out price lists on certain goods; but
these alone would not give exclusive right of use.”
If this case is decided under the IP Code, will the outcome
be different?
Secondary meaning or acquired distinctiveness
may be gained only with respect to marks under
paragraphs (j),(k) and (l)
Precedents on Secondary Meaning
• Phil. Nut Industry Inc. vs. Standard Brands Inc., GR
L-23035, July 31, 1975; PLANTERS trademark
• Ang vs. Teodoro, GR No. L-48226, December 14,
194; ANG TIBAY trademark
Sec. 123.2. As regards signs or devices mentioned in
paragraphs (j), (k), and (l), nothing shall prevent the
registration of any such sign or device which has become
distinctive in relation to the goods for which registration is
requested as a result of the use that have been made of it
in commerce in the Philippines.
The Office may accept as prima facie evidence that the
mark has become distinctive, as used in connection with the
applicant's goods or services in commerce, proof of
substantially exclusive and continuous use thereof by the
applicant in commerce in the Philippines for five (5) years
before the date on which the claim of distinctiveness is
made.
SOCIETE DES PRODUITS NESTLE, S.A. and NESTLE
PHILIPPINES, INC. vs. COURT OF APPEALS and CFC
CORPORATION, G.R. No. 112012. April 4, 2001.
Nestle’s Marks: MASTER ROAST and MASTER BLEND."
CFC’s Marks: "FLAVOR MASTER"
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 2
Nestle filed notice of opposition to CFC’s application for
FLAVOR MASTER
CFC argued that its trademark, FLAVOR MASTER, is not
confusingly similar with the former's trademarks, MASTER
ROAST and MASTER BLEND.
1. MASTER is either a generic or descriptive word Other
words used with the trademarks are very different from
each other — in meaning, spelling, pronunciation, and
sound.
Bureau of Patents denied CFC’s trademark application, but
CA reversed its decision and ruled in favor of CFC.
CA held that the physical discrepancies between appellant
CFC's and appellee's respective logos are so ostensible that
the casual purchaser cannot likely mistake one for the other.
Supreme Court reversed the CA:
1. The Court of Appeals applied some judicial precedents
which are not on all fours with this case.
2. In infringement or trademark cases in the Philippines, no
set rules can be deduced in ascertaining whether one
trademark is confusingly similar to or is a colorable imitation
of another. Each case must be decided on its own merits.
2. The cases cited by the Court of Appeals to justify the
application of the totality or holistic test to this case
are inapplicable, the factual circumstances being
substantially different.
3.
BIOFERIN and BUFFERIN for pains caused headaches and
colds are spelled and pronounced differently and are
prescribed by physicians

ALACTA for goods under Class 6 for pharmaceutical and
nutritional preparation is distinguishable from ALASKA for
goods under Class 47 for food ingredients. The latter does
not require prescription.
4. "The determination of whether two trademarks are
indeed confusingly similar must be taken from the viewpoint
of the ordinary purchasers who are, in general,
undiscerningly rash in buying the more common and less
expensive household products like coffee, and are therefore
less inclined to closely examine specific details of similarities
and dissimilarities between competing products."
5. MASTER is the dominant feature of opposer's mark.
MASTER is printed predominantly on the label and
emphasized in TV, radio and printed advertising materials
with personalities like Robert Jaworski and Atty. Ric Puno Jr.,
who are given the titles Master of the Game and Master of
the Talk Show.
6. In addition, the word "MASTER" is neither a generic nor a
descriptive term. As such, said term can not be invalidated
as a trademark and, therefore, may be legally protected.
Rather, the term "MASTER" is a suggestive term brought
about by the advertising scheme of Nestle.
7. The term "MASTER", therefore, has acquired a certain
connotation to mean the coffee products MASTER ROAST
and MASTER BLEND produced by Nestle. As such, the use
by CFC of the term "MASTER" in the trademark for its coffee
product FLAVOR MASTER is likely to cause confusion or
mistake or even to deceive the ordinary purchasers.
Territorial character of trademarks
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 3
• Philip Morris Inc. et. al. vs. Fortune Tobacco Corp.,
July 16, 1993
“[T]here is no proof whatsoever that any of plaintiff’s
products which they seek to protect from any adverse effect
of the trademark applied for by defendant, is in actual use
and available for commercial purposes anywhere in the
Philippines.***
In assailing the justification arrived at by respondent court
when it recalled the writ of preliminary injunction,
petitioners are of the impression that actual use of their
trademarks in Philippine commercial dealings is not an
indispensable element under Article 2 of the Paris
Convention in that:
(2) …no condition as to the possession of a domiciled or
establishment in the country where protection is claimed
may be required of persons entitled to the benefits of the
Union for the enjoyment of any industrial property rights.
Yet petitioner’s perception along this line is nonetheless
resolved by Sections 2 and 2-A of the Trademark Law which
speaks about the necessity of actual commercial use of the
trademark in the local forum: …
Following universal acquiescence and comity, our municipal
law on trademarks regarding the requirement of actual use
in the Philippines must subordinate an international
agreement inasmuch as the apparent clash is being decided
by a municipal tribunal. … Under the doctrine of
incorporation as applied in most countries, rules of
international law are given a standing equal, if not superior,
to national legislative enactments.”
• But see Section 123(e) * * * In determining
whether a mark is well known, account shall
be taken of the knowledge of the relevant sector of the
public, rather than of the public at large, including

knowledge in the Philippines which has been obtained as a
result of the promotion of the mark;
“Through advertisement, a well-established and well-earned
reputation may be gained in countries where the trademark
owner has itself no established business connection.
Goodwill may thus be seen to be much less confined
territorially than say, a hundred or fifty years ago. It is no
longer true that a trademark of itself cannot travel to
markets where there is no article to wear the badge and no
trader to offer the article. Advertisement of trademark is
geared toward promotion of use of the marked article and
the attraction of potential buyers and users; by fixing the
identity of the marked article in the public mind, it prepares
the way for growth in such commerce whether the
commerce be handled by the trademark owner itself or by
its licensees or independent traders.”
See also:
SECTION 3. International Conventions and Reciprocity. -
Any person who is a national or who is domiciled or has a
real and effective industrial establishment in a country
which is a party to any convention, treaty or agreement
relating to intellectual property rights or the repression of
unfair competition, to which the Philippines is also a party,
or extends reciprocal rights to nationals of the
Philippines by law, shall be entitled to benefits to the extent
necessary to give effect to any provision of such convention,
treaty or reciprocal law, in addition to the rights to which
any owner of an intellectual property right is otherwise
entitled by this Act. (n)
Essential Steps to Protection
• Actual use in commerce
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 4
• Application process
• early filing date or priority date
• Examination process
• conflict with other marks applied for or m
registered or with prior users of the trademark
How to Obtain Protection
• Actual use in commerce
• Application for registration
The old Trademark Law followed an actual use system, while
the IP Code followed a hybrid filing-actual use system
While actual use was required for at least two months
before application under old TM law, the IP Code allows
application without use and requires it only within three
years from filing date
SECTION 124. Requirements of Application. - 124.1.
The application for the registration of the mark shall be in
Filipino or in English and shall contain the following:
(a) A request for registration;
(b) The name and address of the applicant;
(c) The name of a State of which the applicant is a
national or where he has domicile; and the name of a State
in which the applicant has a real and effective industrial or
commercial establishment, if any;
(d) Where the applicant is a juridical entity, the law
under which it is organized and existing;
(e) The appointment of an agent or representative, if the
applicant is not domiciled in the Philippines;
(f) Where the applicant claims the priority of an earlier
application, an indication of:

i) The name of the State with whose national office the
earlier application was filed or if filed with an office other
than a national office, the name of that office,
ii) The date on which the earlier application was filed,
and
iii) Where available, the application number of the
earlier application;
(g) Where the applicant claims color as a distinctive
feature of the mark, a statement to that effect as well as
the name or names of the color or colors claimed and an
indication, in respect of each color, of the principal parts of
the mark which are in that color;
(h) Where the mark is a three-dimensional mark, a
statement to that effect;
(i) One or more reproductions of the mark, as
prescribed in the Regulations;
(j) A transliteration or translation of the mark or of
some parts of the mark, as prescribed in the
Regulations;
(k) The names of the goods or services for which the
registration is sought, grouped according to the classes of
the Nice Classification, together with the number of the
class of the said Classification to which each group of goods
or services belongs; and
(l) A signature by, or other self-identification of, the
applicant or his representative.
124.2. The applicant or the registrant shall file a declaration
of actual use of the mark with evidence to that effect, as
prescribed by the Regulations within three (3) years from
the filing date of the application. Otherwise, the application
shall be refused or the mark shall be removed from the
Register by the Director.
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 5
124.3. One (1) application may relate to several goods
and/or services, whether they belong to one (l) class or to
several classes of the Nice Classification.
124.4. If during the examination of the application, the
Office finds factual basis to reasonably doubt the veracity of
any indication or element in the application, it may require
the applicant to submit sufficient evidence to remove the
doubt. (Sec. 5, R.A. No. 166a)
SECTION 127. Filing Date – determines the right of priority
of the application, the examination and publication so it is
important to comply with the requirements for a filing date
under this provision
Question: ABC filed an application for trademark DEF with
the IP Office on 1/1/04 claiming the priority date of its US
application filed with the USPTO on 6/1/03. Is the applicant
entitled to a priority date of 6/1/03.
SECTION 131. Priority Right. - 131.1. An application
for registration of a mark filed in the Philippines by a person
referred to in Section 3, and who previously duly filed an
application for registration of the same mark in one of those
countries, shall be considered as filed as of the day the
application was first filed in the foreign country.
131.2. No registration of a mark in the Philippines by a
person described in this section shall be granted until such
mark has been registered in the country of origin of the
applicant.
Limitation on right to sue
131.3. Nothing in this section shall entitle the owner of a
registration granted under this section to sue for acts
committed prior to the date on which his mark was
registered in this country: Provided, That, notwithstanding
the foregoing, the owner of a well-known mark as defined in
Section 123.1(e) of this Act, that is not registered in the

Philippines, may, against an identical or confusingly similar
mark, oppose its registration, or petition the cancellation of
its registration or sue for unfair competition, without
prejudice to availing himself of other remedies provided for
under the law.
When a first foreign application is withdrawn
131.4. In like manner and subject to the same conditions
and requirements, the right provided in this section may be
based upon a subsequent regularly filed application in the
same foreign country: Provided, That any foreign application
filed prior to such subsequent application has been
withdrawn, abandoned, or otherwise disposed of, without
having been laid open to public inspection and without
leaving any rights outstanding, and has not served, nor
thereafter shall serve, as a basis for claiming a right of
priority. (Sec. 37, R.A. No. 166a)
SECTION 128. Single Registration for Goods and/or
Services- several classes of goods and/or services may be
included in one (1) application, but the application shall
result in one registration additional fees are imposed
goods determine the protection afforded under the related
goods doctrine
• declaration of use within three years from filing date
must provide evidence of actual use on specific
products and registration will mention only such
products
SECTION 130.Signature and Other Means of Self-
Identification.
• hand-written signature, printed or stamped signature
• communications made by telefacsimile accepted
followed by original within thirty days
No attestation, notarization, authentication, legalization or
other certification of any signature or other means of self-
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 6
identification referred to in the preceding paragraphs, will be
required, except, where the signature concerns the
surrender of a registration
SECTION 132.Application Number and Filing Date are given
when the filing requirements are met
SECTION 133. Examination and Publication – examination
on the issue of registrability, and if approved the trademark
application will be published in the Official Gazette
SECTION 126. Disclaimers. The Office may allow or require
the applicant to disclaim an unregistrable component of an
otherwise registrable mark but such disclaimer shall not
prejudice or affect the applicant's or owner's rights then
existing or thereafter arising in the disclaimed matter, nor
such shall disclaimer prejudice or affect the applicant's or
owner's right on another application of later date if the
disclaimed matter became distinctive of the applicant's or
owner's goods, business or services. (Sec. 13, R.A. No.
166a)
Conflict with rival applicants or users
• What are the rights of a prior user of a trademark vis
a vis the registered owner but junior user of an
identical mark?
• TRIPS Agreement says that “the rights [of a
registered owner] shall not prejudice any existing
prior rights.”
• Section 236. Preservation of Existing Rights. -
Nothing herein shall adversely affect the rights on
the enforcement of rights in patents, utility models,
industrial designs, marks and works, acquired in
good faith prior to the effective date of this Act. (n)
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 7

• Pursuant to TRIPS, the IP Code makes rights to

trademarks available on the basis of use
• Under Section 124.2, the applicant or the registrant
shall file a declaration of actual use of the mark with
evidence to that effect, as prescribed by the
Regulations within three (3) years from the filing
date of the application. Otherwise, the application
shall be refused or the mark shall be removed from
the Register by the Director.

The only possible exception may be well-known trademarks,

which may bar other applications “whether or not it is
registered here”

Question: ABC filed an application for trademark DEF with

the IP Office on 6/1/04 claiming the priority date of its US
application filed with the USPTO on 1/1/04. The IP Office
granted the registration when ABC filed its certificate of
registration from the USPTO.

ABC then sued XYZ for trademark infringement for acts

committed for the preceding 4 years during which it used
the mark.

Will the action prosper?

Will your answer be the same if DEF is a well-known mark?
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 8

Intellectual Property Law 134 From creation From filing, From filing,
Trademarks without any formality publication, grant publication,
grant
Comparative Table

Copyright Patents Trademarks

During lifetime and Twenty years from Ten years
50 years after death filing date renewable
Original Technical solution Visible sign without
intellectual of a problem in capable of limitation
creations in the any field of human distinguishing
literary or artistic activity goods or services
domain of enterprise

Stimulation of artistic Promotion of Protection of

creativity for the innovation for free goodwill and
Originality Novelty, inventive Distinctiveness
public good exploitation the public
step and industrial
against
applicability
confusion

Reproduction, Making, using, Use in commerce

dramatization, selling, offering for without consent of
first public sale and importing a mark or a
distribution, dominant feature
rental, public in connection with
display, public sale, offering for
performance other sale, distribution,
communication to advertising in a
public manner likely to
cause confusion

Section 121.1."Mark" means any visible sign capable of
distinguishing the goods (trademark) or services (service
mark) of an enterprise and shall include a stamped or
marked container of goods; (Sec. 38, R.A. No. 166a)
Is the MGM Roaring Lion registrable as a trademark in the
Philippines?
Is the Harley Davidson roaring engine registrable as a
trademark in the Philippines?
In what ways is a collective mark different from a
trademark?
Section 121.2. "Collective mark" means any visible
sign designated as such in the application for registration
and capable of distinguishing the origin or any other
common characteristic, including the quality of goods or
services of different enterprises which use the sign under
the control of the registered owner of the collective mark;
(Sec. 40, R.A. No. 166a)
How are trademarks classified based on their
distinctiveness?
Spectrum of Distinctiveness
• Generic – no trademark significance, cannot be
exclusively appropriated except as a part of an
otherwise composite mark, and even then must be
disclaimed, e.g, Kamiseta, Pancake House
• Descriptive – tells us the intended purpose, function,
use,size, desirable characteristics of goods, nature of
goods or effects upon users,
e.g., T-JOISTS for floor and roof systems; self-laudatory
marks like TASTY for bread, CHAP STICK for lip balm;
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 9
change of form notwithstanding, SPECS for spectacles,
DYANSHINE for shoe polish from dye and shine; KWIKSTART
for car batteries; but may be registrable upon proof of
secondary meaning
• Suggestive – indirect or vague reference to
information about the product and requires a
thought process, ROACH MOTEL for cockroach trap,
COPPERTONE for tan oil, PLAYBOY for magazine, CYCLONE
for wire fence, STRONGHOLD for nails
• Arbitrary or Fanciful – usually coined words, ROLEX
for watches, KODAK for cameras
Why Distinctiveness Matters
Pearl & Dean (Phil.), Incorporated vs. Shoemart,
Incorporated, and North Edsa Marketing, Incorporated, G.R.
No. 148222, August 15, 2003
Issue: TM infringement, Non-distinctive mark
Facts:
1. P&D manufactures advertising display units or light
boxes, which utilize specially printed posters
sandwiched between plastic sheets and illuminated
with back lights.
2. It secured a TM registration for "Poster Ads" which
petitioner's president said was a contraction of
"poster advertising."
3. But the goods covered were "stationeries such as
letterheads, envelopes, calling cards and newsletters,"
which P&D did not actually manufacture.
The SC held:
1. The trademark registration did not cover poster ads.
If at all, the cause of action should have been for
unfair competition, a situation which was possible
even if P & D had no registration.

2. Nonetheless, respondents are not liable for unfair
competition.
3. There was no evidence that P & D's use of "Poster Ads"
was distinctive or has been associated by the public with
P&D by reason of long and exclusive use in its business.
"'Poster Ads' was too generic a name so it was difficult to
identify it with any company. Hence, in the mind of the
public, the goods and services carrying the trademark
"Poster Ads" could not be distinguished from the goods and
services of other entities.
4. "Poster Ads" cannot acquire secondary meaning.
SOCIETE DES PRODUITS NESTLE, S.A. and NESTLE
PHILIPPINES, INC. vs. COURT OF APPEALS and CFC
CORPORATION, G.R. No. 112012. April 4, 2001.
Nestle’s Marks: MASTER ROAST and MASTER BLEND."
CFC’s Marks: "FLAVOR MASTER"
Nestle filed notice of opposition to CFC’s application for
FLAVOR MASTER
CFC argued that its trademark, FLAVOR MASTER, is not
confusingly similar with the former's trademarks, MASTER
ROAST and MASTER BLEND.
1. MASTER is either a generic or descriptive word Other
words used with the trademarks are very different from
each other — in meaning, spelling, pronunciation, and
sound.
Bureau of Patents denied CFC’s trademark application, but
CA reversed its decision and ruled in favor of CFC.
CA held that the physical discrepancies between appellant
CFC's and appellee's respective logos are so ostensible that
the casual purchaser cannot likely mistake one for the other.
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 10
Supreme Court reversed the CA:
1. The Court of Appeals applied some judicial precedents
which are not on all fours with this case.
2. In infringement or trademark cases in the Philippines, no
set rules can be deduced in ascertaining whether one
trademark is confusingly similar to or is a colorable imitation
of another. Each case must be decided on its own merits.
3. The cases cited by the Court of Appeals to justify the
application of the totality or holistic test to this case are
inapplicable, the factual circumstances being substantially
different.
BIOFERIN and BUFFERIN for pains caused headaches and
colds are spelled and pronounced differently and are
prescribed by physicians
ALACTA for goods under Class 6 for pharmaceutical and
nutritional preparation is distinguishable from ALASKA for
goods under Class 47 for food ingredients. The latter does
not require prescription.
4. "The determination of whether two trademarks are
indeed confusingly similar must be taken from the viewpoint
of the ordinary purchasers who are, in general,
undiscerningly rash in buying the more common and less
expensive household products like coffee, and are therefore
less inclined to closely examine specific details of similarities
and dissimilarities between competing products."
5. MASTER is the dominant feature of opposer's mark.
MASTER is printed predominantly on the label and
emphasized in TV, radio and printed advertising materials
with personalities like Robert Jaworski and Atty. Ric Puno Jr.,
who are given the titles Master of the Game and Master of
the Talk Show.
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 11

6. In addition, the word "MASTER" is neither a generic nor a

descriptive term. As such, said term can not be invalidated
as a trademark and, therefore, may be legally protected.
Rather, the term "MASTER" is a suggestive term brought
about by the advertising scheme of Nestle.

7. The term "MASTER", therefore, has acquired a certain

connotation to mean the coffee products MASTER ROAST
and MASTER BLEND produced by Nestle. As such, the use
by CFC of the term "MASTER" in the trademark for its coffee
product FLAVOR MASTER is likely to cause confusion or
mistake or even to deceive the ordinary purchasers.

What elements of this art design are registrable as

trademarks and how do you classify them in terms of
distinctiveness ?

Trademarks, Patents and Copyright as Subjects of

Commercial Transactions

SECTION 4. Definitions. - 4.1. The term "intellectual

property rights" consists of:
a) Copyright and Related Rights;
b) Trademarks and Service Marks;
c) Geographic Indications;
d) Industrial Designs;
e) Patents;
f) Layout-Designs (Topographies) of Integrated
Circuits; and
g) Protection of Undisclosed Information (n, TRIPS).

What elements in this pictorial illustration are registrable as
trademarks in the Philippines and how do you classify them
in terms of distinctiveness?
4.2. The term "technology transfer arrangements" refers
to contracts or agreements involving the transfer of
systematic knowledge for the manufacture of a product, the
application of a process, or rendering of a service including
management contracts; and the transfer, assignment or

licensing of all forms of intellectual property rights, including
licensing of computer software except computer software
developed for mass market.
Section 150. License Contracts. – Any license contract
concerning the registration of a mark, or an application
therefor, shall provide for effective control by the licensor of
the quality of the goods or services of the licensee in
connection with which the mark is used. If the license
contract does not provide for such quality control or if such
quality control is not effectively carried out, the license
contract shall not be valid.
Technology Transfer Arrangement
Section 4.2. The term "technology transfer arrangements"
refers to contracts or agreements involving the transfer of
systematic knowledge for the manufacture of a product, the
application of a process, or rendering of a service including
management contracts; and the transfer, assignment or
licensing of all forms of intellectual property rights, including
licensing of computer software except computer software
developed for mass market.
Requirement for Enforceability
Section 92. Non-Registration with the Documentation,
Information and Technology Transfer Bureau. - Technology
transfer arrangements that conform with the provisions of
Sections 86 and 87 need not be registered with the
Documentation, Information and Technology Transfer
Bureau. Non-conformance with any of the provisions of
Sections 87 and 88, however, shall automatically render the
technology transfer arrangement unenforceable,
unless said technology transfer arrangement is approved
and registered with the Documentation, Information and
Technology Transfer Bureau under the provisions of Section
91 on exceptional cases. (n)
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 12
Don’ts of IP Licensing
SECTION 87. Prohibited Clauses. - Except in cases under
Section 91, the following provisions shall be deemed prima
facie to have an adverse effect on competition and trade:
87.1. Those which impose upon the licensee the obligation
to acquire from a specific source capital goods, intermediate
products, raw materials, and other technologies, or of
permanently employing personnel indicated by the licensor;
87.2. Those pursuant to which the licensor reserves the
right to fix the sale or resale prices of the products
manufactured on the basis of the license;
87.3. Those that contain restrictions regarding the volume
and structure of production;
87.4. Those that prohibit the use of competitive
technologies in a non-exclusive technology transfer
agreement;
87.5. Those that establish a full or partial purchase option
in favor of the licensor;
87.6. Those that obligate the licensee to transfer for free
to the licensor the inventions or
improvements that may be obtained through the use of the
licensed technology;
87.7. Those that require payment of royalties to the
owners of patents for patents which are not used;
87.8. Those that prohibit the licensee to export the
licensed product unless justified for the protection of the
legitimate interest of the licensor such as exports to
countries where exclusive licenses to manufacture and/or
distribute the licensed product(s) have already been
granted;

87.9. Those which restrict the use of the technology
supplied after the expiration of the technology transfer
arrangement, except in cases of early termination of the
technology transfer arrangement due to reason(s)
attributable to the licensee;
87.10. Those which require payments for patents and other
industrial property rights after their expiration, termination
arrangement;
87.11. Those which require that the technology recipient
shall not contest the validity of any of the patents of the
technology supplier;
87.12. Those which restrict the research and development
activities of the licensee designed to absorb and adapt the
transferred technology to local conditions or to initiate
research and development programs in connection with new
products, processes or equipment;
87.13. Those which prevent the licensee from adapting the
imported technology to local conditions, or introducing
innovation to it, as long as it does not impair the quality
standards prescribed by the licensor;
87.14. Those which exempt the licensor for liability for non-
fulfillment of his responsibilities under the technology
transfer arrangement and/or liability arising from third party
suits brought about by the use of the licensed product or
the licensed technology; and
87.15. Other clauses with equivalent effects. (Sec. 33-C (2),
R.A 165a)
Do’s of IP Licensing
SECTION 88. Mandatory Provisions. - The following
provisions shall be included in voluntary license contracts:
88.1. That the laws of the Philippines shall govern the
interpretation of the same and in the event of litigation, the
venue shall be the proper court in the place where the
licensee has its principal office;
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 13
88.2. Continued access to improvements in techniques and
processes related to the technology shall be made available
during the period of the technology transfer arrangement;
88.3. In the event the technology transfer arrangement
shall provide for arbitration, the Procedure of Arbitration of
the Arbitration Law of the Philippines or the Arbitration
Rules of the United Nations Commission on International
Trade Law (UNCITRAL) or the Rules of Conciliation and
Arbitration of the International Chamber of Commerce (ICC)
shall apply and the venue of arbitration shall be the
Philippines or any neutral country; and
88.4. The Philippine taxes on all payments relating to the
technology transfer arrangement shall be borne by the
licensor. (n)
Exceptions to the Don’ts and Do’s
SECTION 91. Exceptional Cases. - In exceptional or
meritorious cases where substantial benefits will accrue to
the economy, such as high technology content, increase in
foreign exchange earnings, employment generation,
regional dispersal of industries and/or substitution with or
use of local raw materials, or in the case of Board of
Investments, registered companies with pioneer status,
exemption from any of the above requirements may be
allowed by the Documentation, Information and Technology
Transfer Bureau after evaluation thereof on a case by case
basis. (n)
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 14

1. Under Sec. 37 of TM Law (and now Sec. 165 of IP

Not All Marks are Created Equal Code), trade names are protected against
subsequent use by a third party in a manner likely to
mislead the public.
2. Sec. 18 of Corp. Code also protects the registered
corporate names of Rolex companies in the Phils. A
corporation’s right to use its corporate name is a property
right, which it may protect against the whole world.
3. The ROLEX name and mark is known worldwide as a
leading brand or name for timepieces. It is a world
famous mark.
4. Respondent’s argument that confusion is not likely is
unacceptable because “what is sought to be protected is not
the product alone, but the trade name itself of petitioner.

4. The protection to which the prior user of a corporate

You can’t go wrong with a mark like ROLEX
Montres Rolex, S. A. vs. Rolex Scientific Corporation, SEC
Decision, April 28, 2004
Issue: Unauthorized use of Rolex trademark and trade name
Facts:
1. Petitioner is the registered owner of the trademark
ROLEX for watches in the Phils. and elsewhere.
ROLEX is used as a trade name.
2. ROLEX trademark is registered in numerous countries
worldwide. It is used as part of the corporate name of a
Rolex subsidiary in the Phils.
name is entitled is not limited to guarding its goods
or business from actual market competition with
identical or similar products of the parties but
extends to all cases in which the use of the junior
appropriator of the name is likely to lead to confusion
as to source, as where prospective purchasers would
be misled into thinking that the complaining
corporation has extended its business into the field,
or is in any way connected with the activities of the
infringer; or when it forestalls the normal expansion
of its business.

3. Respondent used and registered ROLEX as part of its

corporate name in the Phils. ahead of the Rolex subsidiary.
Respondent manufactures laboratory supplies. Respondent
claims that confusion is unlikely because it is using ROLEX
only as part of its corporate name, but not as a trademark.

Held:
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 15

If you have not heard of Intel, you don’t belong to this Why it is given special treatment
century !!!
Pribhdas J. Mirpuri .vs. Court of Appeals, Director of Patents
and the Barbizon Corporation, G.R. No. 114508. November
19, 1999
Issue: Well-known mark
Facts:
1. Escobar applied with the BPTT for the registration of
the trademark "Barbizon" for use in brassieres and
ladies undergarments. She claimed use of the mark
since 1970.
2. Barbizon opposed the application on the basis of its
use of “Barbizon” for apparel.
3. Escobar prevailed but her registration lapsed because
she failed to file affidavit of use.
4. Barbizon opposed Escobar’s re-application. Opposition
was based on new grounds: fraudulent registration in 1974,
violation of Art. 189 (3) the RPC, protection of well-known
mark under Art. 6bis of Paris Convention
SC held:
1. Opposition is not barred by res judicata because
Everybody Loves Microsoft!!! while the first opposition was only based on claim of
confusing similarity second opposition was based on
new grounds not raised in the first case.
2. Barbizon’s opposition is anchored on protection of
well-known mark Article under 6bis of the Paris
Convention

3. The “Barbizon” trademark is well-known because:

(a) It has been used as early as 1933 on products such as
robes, pajamas, lingerie, nightgowns and slips;
(b) It was registered with the USPO in 1934 and 1949; and
variations of the same trademark, i.e., "BARBIZON" with
Bee design and "BARBIZON" with the representation of a
woman were also registered with the USPO in 1961 and
1976;

(c) It has been used in the Philippines and in many
countries all over the world for over forty years.
(d) "Barbizon" products have been advertised in
international publications and the marks registered in 36
countries worldwide;
It doesn’t pay to copy another’s mark
particularly if it’s well known
Section 123. Registrability. A mark cannot be registered if
it:*
(e) Is identical with, or confusingly similar to, or
constitutes a translation of a mark which is considered by
the competent authority of the Philippines to be well-known
internationally and in the Philippines, whether or not it is
registered here, as being already the mark of a person other
than the applicant for registration, and used for identical or
similar goods or services:
Provided, That in determining whether a mark is well-
known, account shall be taken of the knowledge of the
relevant sector of the public, rather than of the public at
large, including knowledge in the Philippines which has been
obtained as a result of the promotion of the mark;
SECTION 123.Registrability. A mark cannot be registered if
it:*
(f) Is identical with, or confusingly similar to, or
constitutes a translation of a mark considered well-known in
accordance with the preceding paragraph, which is
registered in the Philippines with respect to goods or
services which are not similar to those with respect to which
registration is applied for: Provided,
Par (e) covers situation where:
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 16
• a mark is considered by Philippine authorities to be
well-known internationally and in the Phils.
• the mark may or may not be registered in the Phils.
• the mark is used for identical or similar goods and
services to those of the rival user
• the well-known mark bars the rival mark
Par (f) covers situation where:
• a mark is considered well-known internationally and
in the Phils.
• such mark is also registered in the Phils.
• the goods or services for which the mark is
registered are not similar to those in respect of which
rival mark is applied for
• well-known mark bars the rival mark if “connection”
with and “prejudice” to owner of mark are shown
Rule102. Criteria. In determining whether a mark is well
known, the following criteria or any combination thereof
may be taken into account:
(a) The duration, extent and geographical area of any use of
the mark, in particular, the duration, extent and
geographical area of any promotion of the mark, including
the advertising or publicity and the presentation at fairs, or
exhibitions, of the goods and services
to which the mark applies;
(b) the market share, in the Philippines and in other
countries, of the goods and services to which the mark
applies;
( c) the degree of the inherent or acquired distinction of the
mark;
(d) the quality, image or reputation acquired by the mark;
(e) the extent to which the mark has been registered in the
world
(f) the exclusivity of registration attained by the mark in the
world;

(g) the extent to which the mark has been used in the
world;
(h) the exclusivity of use attained by the mark in the world;
(i) The commercial value attributed to the mark in the
world;
(j) The record of successful protection of the rights in the
mark
(k)the outcome of litigations dealing with the issue of
whether the mark is a well-known mark
(l) the presence or absence of identical or similar marks
validly registered for or used on identical or similar goods
and services and owned by persons other than the person
claiming that his mark is a well-known mark.
Protection of Trade Names
• Paris Convention mandates that member countries
shall protect the trade names of nationals of other
members “without the obligation of filing or
registration”
• Section 18 of the Corporation Code prevents the use
as corporate names of designations “protected by
law”
1. What is the national treatment principle in IP law?
Each WTO member shall accord to nationals of other
Members treatment no less favorable than that which it
accords to its own nationals with regard to the protection of
intellectual property
2. What is the most-favored national treatment in IP
law?
With regard to the protection of intellectual
property, any advantage, favor, privilege or immunity
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 17
granted by Members to the nationals of any other country
shall be accorded immediately and unconditionally to the
nationals of all other Members.
Section 123. Registrability. A mark cannot be registered if
it:*
(e) Is identical with, or confusingly similar to, or
constitutes a translation of a mark which is considered by
the competent authority of the Philippines to be well-known
internationally and in the Philippines, whether or not it is
registered here, as being already the mark of a person other
than the applicant for registration, and used for identical or
similar goods or services:
Provided, That in determining whether a mark is well-
known, account shall be taken of the knowledge of the
relevant sector of the public, rather than of the public at
large, including knowledge in the Philippines which has been
obtained as a result of the promotion of the mark;
Why do I have to worry about it?
SECTION 123.Registrability. A mark cannot be registered if
it:*
(f) Is identical with, or confusingly similar to, or
constitutes a translation of a mark considered well-known in
accordance with the preceding paragraph, which is
registered in the Philippines with respect to goods or
services which are not similar to those with respect to which
registration is applied for: Provided,
That use of the mark in relation to those goods or services
would indicate a connection between those goods or
services, and the owner of the registered mark: Provided
further, That the interests of the owner of the registered
mark are likely to be damaged by such use;

You are truly something special
Rule102. Criteria. In determining whether a mark is well
known, the following criteria or any combination thereof
may be taken into account:
(a) The duration, extent and geographical area of any use of
the mark, in particular, the duration, extent and
geographical area of any promotion of the mark, including
the advertising or publicity and the presentation at fairs, or
exhibitions, of the goods and services
to which the mark applies;
(b) the market share, in the Philippines and in other
countries, of the goods and services to which the mark
applies;
( c) the degree of the inherent or acquired distinction of the
mark;
(d) the quality, image or reputation acquired by the mark;
(e) the extent to which the mark has been registered in the
world
(f) the exclusivity of registration attained by the mark in the
world;
(g) the extent to which the mark has been used in the
world;
(h) the exclusivity of use attained by the mark in the world;
(i) The commercial value attributed to the mark in the
world;
(j) The record of successful protection of the rights in the
mark
(k)the outcome of litigations dealing with the issue of
whether the mark is a well-known mark
(l) the presence or absence of identical or similar marks
validly registered for or used on identical or similar goods
and services and owned by persons other than the person
claiming that his mark is a well-known mark.
Call it by any other name and it won’t mean the same
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 18
Section 121.3. "Trade name" means the name or
designation identifying or distinguishing an enterprise; (Sec.
38, R.A. No. 166a)
A mark can be a trade name and vice versa
ROLEX, KODAK, INTEL, MICROSOFT, AMAZON, BARBIZON
Protection of Trade Names
• Paris Convention mandates that member countries
shall protect the trade names of nationals of other
members “without the obligation of filing or
registration”
• Section 18 of the Corporation Code prevents the use
as corporate names of designations “protected by
law”
When is it immoral and when deceptive?
Section 165. Trade Names or Business Names. - 165.1. A
name or designation may not be used as a trade name if by
its nature or the use to which such name or designation
may be put, it is contrary to public order or morals and if, in
particular, it is liable to deceive trade circles or the public as
to the nature of the enterprise identified by that name.
No registration is required for protection
165.2.(a) Notwithstanding any laws or regulations
providing for any obligation to register trade names, such
names shall be protected, even prior to or without
registration, against any unlawful act committed by third
parties.
(b) In particular, any subsequent use of the trade name
by a third party, whether as a trade name or a mark or
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 19

collective mark, or any such use of a similar trade name or

mark, likely to mislead the public, shall be deemed unlawful.

Enterprise must be be transferred with the trade name

165.3. The remedies provided for in Sections 153 to 156

and Sections 166 and 167 shall apply mutatis mutandis.
165.4. Any change in the ownership of a trade name shall
be made with the transfer of the enterprise or part thereof
identified by that name. The provisions of Subsections 149.2
to 149.4 shall apply mutatis mutandis.

Domain name as a trademark

A BENCH is what you wear to sit on one

Is it alright to use your name as a mark when you’re dead?

Section 123.1. A mark cannot be registered if it* *(e)

Consists of the name, portrait or signature identifying a
particular living individual except by his written consent, or
the name, signature or portrait of a deceased President of
the Philippines during the lifetime of his widow, if any,
except by the written consent of the widow;

What you hear is what you paid for

A name may be a mark


If TEXT ALOUD doesn’t tell you what it is, it time to quit
this course!!
Don’t use it if it tells you what the product is
Section 123. A mark cannot be registered if it:
(j) consists exclusively of signs or of indications that may
serve in trade to designate the kind, quality, quantity
intended purpose, value, geographical origin, time or
production of the goods or the rendering of the services or
other characteristics of the goods or services.
… unless you are ready to use it for the at least five years
before you can claim it as your own
123.2 As regards signs or devices mentioned in paragraphs
(j), (k), and (l), nothing shall prevent the registration of any
such sign or device which has become distinctive in relation
to the goods for which registration is requested as a result
of the use that have been made of it in commerce in the
Philippines.
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 20
and even then, it’s just prima facie after five years!!!
The Office may accept as prima facie evidence that the
mark has become distinctive, as used in connection with the
applicant's goods or services in commerce, proof of
substantially exclusive and continuous use thereof by the
applicant in commerce in the Philippines for five (5) years
before the date on which the claim of distinctiveness is
made.
If it has a secondary meaning, it must have a primary
Doctrine of secondary meaning or acquired distinctiveness
• limited to marks under paragraphs (j),(k) and (l),
and excludes absolutely unregistrable trademarks
• Phil. Nut Industry Inc. vs. Standard Brands Inc., GR
L-23035, July 31, 1975; PLANTERS
• Ang vs. Teodoro, GR No. L-48226, December 14,
194; ANG TIBAY
It’s the consumer’s mind that counts
Tests of Strength
• Strength refers to the distinctiveness of the mark
• Fanciful-suggestive-descriptive continuum is often
used to determine strength or weakness of marks
• It is a question of consumer recognition
• It is not determined by the value of the goods on
which it is used
…and the more users there are, the less distinctive it is
• Strength is also determined by number of third-party
uses
• e.g., In a crowded field, MRS. OF THE
WORLD is not likely to be confused with MISS
WORLD, Miss World UK vs. Mrs. American
Pageant, Inc. 856 F. 2d 1445

Do you order it single or double?
• A mark may be used singly or in combination with
other marks
e.g., company name is used as house mark in addition to
another mark on labels: SONY VAIO, KELLOGG POP-TARTS,
Kellogg vs. General Foods Corp., 166 USPQ 27
• Multiple marks may be used together by multiple
users
e.g., lawn mower manufactured by Yardman and retailed by
Sears Roebuck can be
If it’s difficult to remember, it’s better than one that isn’t
Types of Marks
• Arbitrarily arranged letters given wide protection
because they are difficult to remember
• An alphanumeric telephone number may be used a
trademark, but if it includes a generic term,
composite mark can be descriptive and may be
protected only upon proof of secondary meaning
• But numbers used to indicate size, capacity, model or
style are not used as trademarks
• Abbreviations and nicknames may function as marks,
e.g., COKE for Coca-Cola, BUD for Budweiser
• Slogans can serve as marks, e.g.. Where There’s
Life… There’s Bud, but not Soil It-Wash it-Never-
Needs Pressing for apparel
If it is ornamental, keep it as a house décor
Ornamental symbols and designs may serve as source
designations, but not if exclusively ornamental, e.g., red,
white and blue panels on basketball, In re Soccer Sport
Supply Co., 507 F 2d 1400; colored bands around top of
men’s socks is not distinctive, In re Schenectady Varnish
Co., 280 F2d 169; but a mark consisting of three parallel
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 21
colored lines of each side of ADIDAS shoes was registered
on proof of secondary meaning, In re Dassler, 134 USPQ
265
If is useful for practical purposes, it doesn’t function as a
mark
Product and Container Shapes may be protected under
unfair competition law if following elements are present:
• Non-functionality
• Proof of secondary meaning
• Likelihood of confusion
e.g., shape of classic automobile, Ferrari SpA vs. McBurnie,
11 USPQ2d 1843; overall design of sports shoes, L. A. Gear
vs. Thom McAn Shoe, 12 USPQ2d 1001
… but if is neither functional nor ornamental, it might be
worth a try
Levi’s pocket tab is a valid trademark, not primarily
functional, and not merely ornamental, Levi Strauss & Co.
vs. Blue Bell, 200 USPQ 434
You can’t appropriate what others need to compete
If one manufacturer should make an advance in
effectiveness of operation or simplicity of form, or in utility
of color; and if that advance did not entitle him to a
monopoly by means of a machine or process or a product or
a design patent; and if by means of unfair trade suits he
could shut out other manufacturers who plainly intended to
share in the benefits of unpatented utilities …
he would be given gratuitously a monopoly more effective
than that of the unobtainable patent in a ratio of eternity to
seventeen years – Pope automatic Merchandising Co. vs.
McCrum-Howell Co., 191 F. 979, 223 US 730
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 22

If the Supreme Court said so, you better believe it!

Functional features cannot be appropriated as trademarks

• Asia Brewery Inc. vs. San Miguel Corp., July 5, 1993

Territorial character of trademarks

• Philip Morris Inc. et. al. vs. Fortune Tobacco Corp.,
July 16, 1993
• But see Section 123(e) * * * In determining
whether a mark is well known, account shall

be taken of the knowledge of the relevant sector of the

public, rather than of the public at large, including
knowledge in the Philippines which has been obtained as a
result of the promotion of the mark;

Required Use As Condition For Registration
SECTION 124.2. The applicant or the registrant shall file
a declaration of actual use of the mark with evidence to that
effect, as prescribed by the Regulations within three (3)
years from the filing date of the application. Otherwise, the
application shall be refused or the mark shall be removed
from the Register by the Director.
Declaration must specify the goods and outlets where they
are sold
Adoption alone of a trademark would not vest exclusive
right upon the proprietor
Trademark is a creation of use
Required Use As Condition For Maintenance
Section 145. * * * the registrant shall file a declaration of
actual use and evidence to that effect, or shall show valid
reasons based on the existence of obstacles to such use, as
prescribed by the regulations, within one (1) year from the
fifth anniversary of the date of registration of the mark.
Otherwise, the mark shall be removed from the Register by
the Office.
Pearl & Dean (Phil.), Incorporated vs. Shoemart,
Incorporated and North Edsa Marketing, Incorporated, G.R.
No. 148222, August 15, 2003
Issue: TM infringement, Class of Goods
Facts:
1. P&D manufactures advertising display units or light
boxes, which utilize specially printed posters
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 23
sandwiched between plastic sheets and illuminated
with back lights.
2. It secured a TM registration for "Poster Ads" which
petitioner's president said was a contraction of
"poster advertising."
3. But the goods covered by the registration were were
"stationeries such as letterheads, envelopes, calling cards
and newsletters," which P&D did not actually manufacture.
The SC held:
1. Under ruling in Faberge Inc. vs. Intermediate Appellate
Court, involving Section 20 of the old Trademark Law, "the
certificate of registration issued by the Director of Patents
can confer (upon petitioner) the exclusive right to use its
own symbol only to those goods specified in the certificate,
subject to any conditions and
limitations specified in the certificate . . . . One who has
adopted and used a trademark on his goods does not
prevent the adoption and use of the same trademark by
others for products which are of a different description."
Faberge, Inc. was correct and was in fact recently reiterated
in Canon Kabushiki Kaisha vs. Court of Appeals.
2. Assuming arguendo that "Poster Ads" could validly qualify
as a trademark, the failure of P & D to secure a trademark
registration for light boxes meant that there could not have
been any trademark infringement since registration was an
essential element thereof.
3. Note Sec. 147, “identical or similar”

Canon Kabushiki Kaisha vs. Court of Appeals and NSR
Rubber Corporation, G.R. No. 120900. July 20, 2000
Issue: Related Goods Doctrine
Facts:
1. NSR Rubber Corporation (private respondent) filed an
application with the BPTTT for registration of the mark
CANON for sandals.
2. Canon Kabushiki Kaisha opposed the application.
3. Canon’s certificates of registration for the mark. CANON
in the Philippines and other countries covering goods in
class 2 (paints, chemical products, toner, and dye stuff).
4. BPTT and CA dismissed the opposition.
5. Before the SC, Canon claims that its use of CANON on
paints, chemical products, toner, and dye stuff, which are
used as shoe polisher and polishing agents justified the
rejection of NSR’s application for CANON for sandals.
The SC held:
1. Ordinarily, a trademark is a a property right that is
protected by law.
2. But when a trademark is used by another on product
in which the opposer does not deal, the use of the
same trademark on the latter's product cannot be
validly objected to.
3. Related Goods Doctrine: There is a world of
difference between the paints, chemical products,
toner, and dyestuff of petitioner and the sandals of
private respondent.
4. Natural Expansion of Business Doctrine:
It would be taxing one's credibility to aver at this point that
the production of sandals could be considered as a possible
"natural or normal expansion" of its business operation".
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 24
5. In Faberge, Incorporated vs. Intermediate Appellate
Court, the Director of patents allowed the junior user to use
the trademark of the senior user on the ground that the
briefs manufactured by the junior user, the product for
which the trademark BRUTE was sought to be registered,
was unrelated and non-competing with the products of the
senior user consisting of after shave lotion, shaving cream,
deodorant, talcum powder, and toilet soap.
6. Paris Convention Claim: "A tradename shall be
protected in all the countries of the Union without
the obligation of filing or registration, whether or not
it forms part of a trademark.“
7. Kabushi Kaisha Isetan vs. Intermediate Appellate
Court : "Regarding the applicability of Article 8 of the
Paris Convention, this Office believes that there is no
automatic protection afforded an entity whose
tradename is alleged to have been infringed through
the use of that name as a trademark by a local
entity.
Excused Non-Uses
SECTION 152. Non-use of a Mark When Excused. -
152.1. Non-use of a mark may be excused if caused by
circumstances arising independently of the will of the
trademark owner. Lack of funds shall not excuse non-use of
a mark.
152.2. The use of the mark in a form different from the
form in which it is registered, which does not alter its
distinctive character, shall not be ground for cancellation or
removal of the mark and shall not diminish the protection
granted to the mark.
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 25

152.3. The use of a mark in connection with one or more of SECTION 147. Rights Conferred. - 147.1. The owner
the goods or services belonging to the class in respect of of a registered mark shall have the exclusive right to
which the mark is registered shall prevent its cancellation or prevent all third parties not having the owner's consent
removal in respect of all other goods or services of the same from using in the course of trade identical or similar signs or
class. containers for goods or services which are identical or
similar to those in respect of which the trademark is
Uses by Related Companies registered where such use would result in a likelihood of
confusion. In case of the use of an identical sign for identical
152.4. The use of a mark by a company related with the goods or services, a likelihood of confusion shall be
registrant or applicant shall inure to the latter's benefit, and presumed.
such use shall not affect the validity of such mark or of its
registration: Provided, That such mark is not used in such 147.2. The exclusive right of the owner of a well-known
manner as to deceive the public. If use of a mark by a mark defined in Subsection 123.1(e) which is registered in
person is controlled by the registrant or applicant with the Philippines, shall extend to goods and services which are
respect to the nature and quality of the goods or services, not similar to those in respect of which the mark is
such use shall inure to the benefit of the registrant or registered: Provided, That use of that mark in relation to
applicant. (n) those goods or services would indicate a connection
between those goods or services and the owner of the
registered mark: Provided further, That the interests of the
Administrative Actions for TM Enforcement owner of the registered mark are likely to be damaged by
such use. (n)
(i) Opposition
(ii) Cancellation Non-actionable Use
(iii) Administrative actions before the Bureau of Legal SECTION 148. Use of Indications by Third Parties for
Affairs Purposes Other than those for which the Mark is Used. -
(iv) Bureau of Customs Border Control Registration of the mark shall not confer on the registered
owner the right to preclude third parties from using bona
Civil Actions for TM Enforcement fide their names, addresses, pseudonyms, a geographical
name, or exact indications concerning the kind, quality,
(i) Trademark infringement quantity, destination, value, place of origin, or time of
(ii) Unfair competition production or of supply, of their goods or services: Provided,
(iii) False designation of Origin That such use is confined to the purposes of mere
(iv) Criminal Actions identification or information and cannot mislead the public
as to the source of the goods or services. (n)
Section 151. Cancellation - * * *
Rights of Registered Owner

Section 151.2. Notwithstanding the foregoing
provisions, the court or the administrative agency vested
with jurisdiction to hear and adjudicate any action to
enforce the rights to a registered mark shall likewise
exercise jurisdiction to determine whether the registration of
said mark may be cancelled in accordance with this Act. The
filing of a suit to enforce the registered mark with the
proper court or agency shall exclude any other court or
agency from assuming jurisdiction over a subsequently filed
petition to cancel the same mark.
On the other hand, the earlier filing of petition to cancel the
mark with the Bureau of Legal Affairs shall not constitute a
prejudicial question that must be resolved before an action
to enforce the rights to same registered mark may be
decided.
Section 134 Opposition
(1) any person who may be damaged by registration;
may be a registrant or user of an identical or similar
mark
(2) opposition shall be in writing and verified by the
oppositor or by any person on his behalf who knows
the facts
(3) specify the grounds on which it is based and include
a statement of the facts relied upon
(4) certificates of registration of marks registered in other
countries or other supporting documents mentioned in the
opposition shall be filed
(5) within thirty days from publication in the OG, extendible
up to 120 days
Section 151, Cancellation
(1) any person who believes that he is or will be
damaged by the registration
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 26
(2) Period for filing:
(a)Within five (5) years from the date of the
registration of the mark under this Act
(b) At any time, if the registered mark becomes the
generic name for the goods or services, or a portion thereof,
for which it is registered, or has been abandoned, or its
registration was obtained fraudulently or contrary to the
provisions of this Act, or if the registered mark is being used
by, or with the permission of, the registrant so as to
misrepresent the source of the goods or services on or in
connection with which the mark is used
The primary significance of the registered mark to the
relevant public rather than purchaser motivation shall be the
test for determining whether the registered mark has
become the generic name of goods or services on or in
connection with which it has been used
(c) At any time, if the registered owner of the mark
without legitimate reason fails to use the mark within the
Philippines, or to cause it to be used in the Philippines by
virtue of a license during an uninterrupted period of three
(3) years or longer.
TRADEMARK INFRINGEMENT
SECTION 155. Remedies; Infringement. - Any person
who shall, without the consent of the owner of the
registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy,
or colorable imitation of a registered mark or the same
container or a dominant feature thereof in connection with
the sale, offering for sale, distribution, advertising of any
goods or services including other preparatory steps
necessary to carry out the sale of any goods or services on
or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 27

155.2. Reproduce, counterfeit, copy or colorably imitate a Section 147.2 on well-known mark speaks of “connection”
registered mark or a dominant feature thereof and apply with and “damage” to owner of the mark arising from the
such reproduction, counterfeit, copy or colorable imitation to use of the mark on dissimilar goods
labels, signs, prints, packages, wrappers, receptacles or
advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or
advertising of goods or services on or in connection with
which such use is likely to cause confusion, or to cause
mistake, or to deceive, shall be liable in a civil action for
infringement by the registrant for the remedies hereinafter
set forth:
Elements of infringement:
1. Use of registered trademark or colorable imitation thereof
or its dominant feature
(i) for the sale, distribution or advertising of goods and
services and other preparatory steps, or
(ii) on labels, signs, prints, packages, wrappers, receptacles
or advertisements
2. Without the consent of the owner
3. Such use is likely to cause confusion, or to cause
mistake, or to deceive

Exact imitation is not required

(i) Dominant feature test
(ii) Holistic test

Actual sale is not required, preparatory steps are sufficient

Actual confusion is not necessary, likelihood is enough

(i) Confusion as to goods
(ii) Confusion as to origin

Emerald Garment Manufacturing Corp. vs. Court of Appeals
docketed as G.R. No. 100098, promulgated by the Supreme
Court on December 29, 1995 was a litigation between H.D.
Lee Company, Inc. of Delaware, USA and a Philippine
company, Emerald Garment, whereby private respondent
H.D. Lee Company, as registrant of the trademark "LEE" in
the Philippines sought cancellation of the trademark
"STYLISTIC MR. LEE" from the Supplemental Register in the
name of the Philippine company.The Bureau of Patents and
Trademarks declared that STYLISTIC MR. LEE confusingly
similar to MR. LEE on the basis of the dominant-feature test.
The word mark LEE is the dominant feature of both marks
the use of which is likely to confuse consumers.On the other
hand, the HOLISTIC TEST mandates that the entirely of the
marks in question must be considered in determining
confusing similarity. (ibid) Quoting Fruit of the Loom, Inc.
vs. Court of Appeals, 133 SCRA 405 (1984), the Supreme
Court advanced that " (I)n determining whether the marks
are confusingly similar, a comparison of the words is not the
only determinant factor. The trademarks in their entirely as
they appear in their respective labels or hang tags must
also be considered in relation to the goods to which they
are attached. The discerning eye of the observer must focus
not only on the predominant words but also on the other
features appearing in both labels in order that they may
draw his conclusion whether one is confusingly similar to
the other."
Section 155.1 on infringement now speaks of “colorable
imitation of a registered mark … or a dominant feature
thereof.”
Del Monte Corporation vs. Court of Appeals G.R. No. L-
78325, January 25, 1990
(i) Side-by-side comparison is not the final test of
similarity
(ii) general confusion made by the article upon the eye
of the casual purchaser who is unsuspicious
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 28
(iii) consumer must depend upon his recollection of the
appearance of the product which he intends to
purchase
(iv) consider the mark as a whole and not as dissected
(v) age, training and education of the usual purchaser, the
nature and cost of the article, whether the article is bought
for immediate consumption and also the conditions under
which it is usually purchased
AMIGO MANUFACTURING, Inc. vs. CLUETT PEABODY CO.,
INC. G.R. No. 139300. March 14, 2001
Peabody:
1. GOLD TOE, under Certificate of Registration No. 6797
dated September 22, 1958;
2. DEVICE, representation of a sock and magnifying glass
on the toe of a sock, under Certificate of Registration No.
13465 dated January 25, 1968;
3. DEVICE, consisting of a 'plurality of gold colored lines
arranged in parallel relation within a triangular area of toe of
the stocking and spread from each other by lines of
contrasting color of the major part of the stocking' under
Certificate of Registration No. 13887 dated May 9, 1968;
and
4. LINENIZED, under Certificate of Registration No. 15440
dated April 13, 1970.
Amigo: 'GOLD TOP, Linenized for Extra Wear.' It has the
dominant color 'white' at the center and a 'blackish brown'
background with a magnified design of the sock's garter,
and is labeled 'Amigo Manufacturing Inc., Mandaluyong,
Metro Manila, Made in the Philippines'.
Bureau of Patents & Trademarks and Court of Appeals
declared the marks confusingly similar. The Supreme Court
affirmed.

a] Peabody presented Bureau registrations indicating the
dates of first use in the Philippines of the trademark and the
devices as follows: a) March 16, 1954, Gold Toe; b)
February 1, 1952, the Representation of a Sock and a
Magnifying Glass; c) January 30, 1932, the Gold Toe
Representation; and February 28, 1952, "Linenized."
b] The registration of the above marks in favor of
respondent constitutes prima facie evidence, which
petitioner failed to overturn satisfactorily, of respondent's
ownership of those marks, the dates of appropriation and
the validity of other pertinent facts stated therein.
c] Moreover, the validity of the Certificates of Registration
was not questioned.
d] Amigo failed to present proof of the date of alleged first
use of the trademark "Gold Top and Device". Thus, even
assuming that Peabody started using it only on May 15,
1962, we can make no finding that Amigo started using it
ahead of Peabody.
e] While pronunciations of the two marks do create
confusion, respondent’s mark is a combination of the
abovementioned trademarks registered separately by the
petitioner in the Philippines and the United States.
f] The difference in sound occurs only in the final letter at
the end of the marks. 'GOLD TOE' and 'GOLD TOP' are
printed in identical lettering. Both show [a] representation
of a man's foot wearing a sock. 'GOLD TOP' blatantly
incorporates petitioner's 'LINENIZED' which by itself is a
registered mark."
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 29
g] The similarities are of such degree, number and quality
that the overall impression given is that the two brands of
socks are deceptively the same, or at least very similar to
each another.
SC rejected respondent’s argument that Peabody did not
present evidence of first use to be entitled to protection.
Since Peabody registered its trademarks under the principal
register, the requirement of prior use had already been
fulfilled. There exists a prima facie presumption of the
correctness of the contents of the certificates, including the
date of first use. Petitioner has failed to rebut this
presumption.
PEARL & DEAN (PHIL.), INCORPORATED vs. SHOEMART,
INCORPORATED, and NORTH EDSA MARKETING,
INCORPORATED, G.R. No. 148222, August 15, 2003
Issue: TM infringement
Facts:
1. P&D manufactures advertising display units or light
boxes, which utilize specially printed posters
sandwiched between plastic sheets and illuminated
with back lights.
2. It secured a TM registration for "Poster Ads" which
petitioner's president said was a contraction of
"poster advertising." But the goods specified
3. But the goods covered were "stationeries such as
letterheads, envelopes, calling cards and newsletters,"
which P&D did not actually manufacture.
The SC held:
1. Under ruling in Faberge Inc. vs. Intermediate Appellate
Court, involving Section 20 of the old Trademark Law, "the
certificate of registration issued by the Director of Patents
can confer (upon petitioner) the exclusive right to use its
own symbol only to those goods specified in the certificate,
subject to any conditions and limitations specified in the

certificate . . . . One who has adopted and used a trademark
on his goods does not prevent the adoption and use of the
same trademark by others for products which are of a
different description." Faberge, Inc. was correct and was in
fact recently reiterated in Canon Kabushiki Kaisha vs. Court
of Appeals.
2. Assuming arguendo that "Poster Ads" could validly qualify
as a trademark, the failure of P & D to secure a trademark
registration for specific use on the light boxes meant that
there could not have been any trademark infringement since
registration was an essential element thereof.
Word- Analysis Approach and Sound Alikes
(i) “SALONPAS” and “LIONPAS,” TEXTWOOD and
DEXWOOD – likely to cause confusion
(ii) "WRANGLER" and "WRANCO," not likely to cause
confusion
Nature of the Goods and Channels of Trade
(i) “ESSO” for petroleum and for cigarettes
Purchasers’ Attitude
Mcdonald’s Corporation and McGeorge Food Industries, Inc.
vs. L.C. Big Mak Burger, Inc et al,G.R. No. 143993, August
18, 2004
1. Remedial law; Petition for Review on Certiorari
2. Trademark infringement; unfair competition; review
of factual findings
(a) nature of business
(b) kind of goods sold
(c ) use of “Big Mak” as corporate name
(d) holistic test
(e) dominant-feature test
(f) passing off
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 30
(g) trademark use
3. Trademark infringement; cause of action and elements
a] The cause of action based on the first part of Section 22
Elements
b] Generic and descriptive character
c] Prior users of trademark
d] Element of confusion: confusion as to goods and
confusion as to origin
e] Market consideration and price differences
f] Dominant-feature test vs. Holistic test
4. Unfair competition; elements
a] elements of an action for unfair competition
b] dissimilarities in the packaging
5. Remedies
Mighty Corporation, Et Al. V. E&J Gallo Winery, et al. SC
G.R. No. 154342, July 14, 2004
1. Petition for certiorari; questions of fact and questions
of law
2. Applicable law at the time the case was filed
(a) Section 239
(b) Curative statute
3. Article 6bis of the Paris Convention: elements of
trademark infringement
4. First use of trademarks
(a) PX stores
(b) Affidavit of non-use
5. Distinctions between trademark infringement
and unfair competition : Del Monte case

(a) Elements under Section 22
(b) wines and cigarettes are related goods
(c) Product indicated in the certificate of registration
(d) Types of confusion : goods vs. origin: The Supreme
Court adopted these two-part analysis inn Sterling
Products International, Incorporated v.
Farbenfabriken Bayer Aktiengesellschaft, et al., and
in the recent decision in McDonald’s Corporation
McGeorge Food Industries, Inc. vs. L.C. Big Mak
Burger, Inc., G.R. No. 143993, August 18, 200
(e) Dominant Feature Test vs. Holistic Test
(f) McDonald’s Corporation McGeorge Food Industries,
Inc. vs. L.C. Big Mak Burger, Inc., G.R. No. 143993,
August 18, 2004, demonstrated that the application
of one test excludes the other. Here the Supreme
Court applied the test of dominancy and rejected the
holistic test
Societe Des Produits Nestlé, S.A. v. Court of Appeals, where
the Court explicitly rejected the holistic test in this wise:
[T]he totality or holistic test is contrary to the elementary
postulate of the law on trademarks and unfair competition
that confusing similarity is to be determined on the basis of
visual, aural, connotative comparisons and overall
impressions engendered by the marks in controversy as
they are encountered in the realities of the marketplace.
(Emphasis supplied)
Trademark Conflicts and Prior Use
SECTION 168. Unfair Competition, Rights, Regulation
and Remedies. - 168.1. A person who has identified in the
mind of the public the goods he manufactures or deals in,
his business or services from those of others, whether or
not a registered mark is employed, has a property right in
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 31
the goodwill of the said goods, business or services so
identified, which will be protected in the same manner as
other property rights.
168.2. Any person who shall employ deception or any other
means contrary to good faith by which he shall pass off the
goods manufactured by him or in which he deals, or his
business, or services for those of the one having established
such goodwill, or who shall commit any acts calculated to
produce said result, shall be guilty of unfair competition,
and shall be subject to an action therefor.
168.3. In particular, and without in any way limiting the
scope of protection against unfair competition, the following
shall be deemed guilty of unfair competition:
(a) Any person, who is selling his goods and gives them
the general appearance of goods of another manufacturer or
dealer, either as to the goods themselves or in the wrapping
of the packages in which they are contained, or the devices
or words thereon, or in any other feature of their
appearance, which would be likely to influence purchasers to
believe that the goods offered are those of a manufacturer
or dealer, other than the actual manufacturer or dealer, or
who otherwise clothes the goods with such appearance as
shall deceive the public and defraud another of his
legitimate trade, or any subsequent vendor of such goods or
any agent of any vendor engaged in selling such goods with
a like purpose;
(b) Any person who by any artifice, or device, or who
employs any other means calculated to induce the false
belief that such person is offering the services of another
who has identified such services in the mind of the public;
or
(c) Any person who shall make any false statement in
the course of trade or who shall commit any other act
 Pau Duman / Intellectual Property Rights / Prof. Amador / Page 32

contrary to good faith of a nature calculated to discredit the faith of a nature calculated to discredit the goods, business
goods, business or services of another. or services of another
168.4. The remedies provided by Sections 156, 157 and 161
shall apply mutatis mutandis. (Sec. 29, R.A. No. 166a) This is called disparaging use of marks or trade libel in other
Unfair Competition jurisdiction
Examples: Genital Electric for panties – General Electric;
(i) No registration of mark is required in unfair competition Inutel Inside – Intel Inside; Where There’s Bugs, There’s
(ii) Defendant shall have given to his goods the general Life for insecticides – Where There’s Life, There’s Bud
appearance of the goods of the complaining party, either in
the wrapping of the packages in which they are contained,
or the devices or words thereon or in any other feature of
their appearance which would be likely to influence
purchasers to believe that the goods offered are those of
the complaining party;
(iii) the defendant should have clothed the goods with such
appearance for the purpose of deceiving the public and
defrauding the complaining party of his legitimate trade

(iv)Unfair competition usually arises in cases of trade dress

imitation

(v)Plaintiff in an unfair competition action must show that

his goods have acquired goodwill and reputation among
consumers

Section 169.1 False Designation of Origin … any false

(vi) The true test of unfair competition is whether the acts
of defendant are such as are calculated to deceive the
ordinary buyer making his purchases under the ordinary
conditions which prevail in the particular trade to which the
controversy relates
(vii)Fraudulent intent on the part of defendant to pass off
his goods or business as or for that of plaintiff is necessary
Section 168.2 subjects to liability for unfair competition “any
person who shall make any false statement in the course of
trade or who shall commit any other act contrary to good
designation of origin, false or misleading description of fact,
or false or misleading representation of fact, which:
(a) Is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of
such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or
commercial activities by another person; or

(b) In commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or
geographic origin of his or her or another person's goods,
services, or commercial activities, shall be liable to a civil
action for damages and injunction provided in Sections 156
and 157 of this Act by any person who believes that he or
she is or is likely to be damaged by such act.
169.2. Any goods marked or labeled in contravention of the
provisions of this Section shall not be imported into the
Philippines or admitted entry at any customhouse of the
Philippines. The owner, importer, or consignee of goods
refused entry at any customhouse under this section may
have any recourse under the customs revenue laws or may
have the remedy given by this Act in cases involving goods
refused entry or seized. (Sec. 30, R.A. No. 166a)
Remedies and Reliefs In Unfair Competition
SECTION 156. Actions, and Damages and Injunction
for Infringement.
(1) damages suffered shall be either
(i) the reasonable profit which the complaining party would
have made, had the defendant not infringed his rights, or
(ii) the profit which the defendant actually made out of the
infringement; or
(iii) if not ascertainable, a reasonable percentage based
upon the amount of gross sales of the defendant or the
value of the services in connection with which the mark or
trade name was used
(2) impounding during the pendency of the action, sales
invoices and other documents evidencing sales
(3) where actual intent to mislead the public or to defraud
the complainant is shown, in the discretion of the court, the
damages may be doubled
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 33
(4) where actual intent to mislead the public or to defraud
the complainant is shown, in the discretion of the court, the
damages may be doubled
(5) complainant, upon proper showing, may also be granted
injunction
(6) under Section 157, destruction of infringing goods and
materials used for infringement; removal of infringing mark
not enough to justify release of goods
Search and seizure in civil cases now allowed under
Supreme Court circular A.M. NO. 02-1-06-SC
SEC. 2. The writ of search and seizure. – Where any delay is
likely to cause irreparable harm to the intellectual property
right holder or where there is demonstrable risk of evidence
being destroyed, the intellectual property right holder or his
duly authorized representative in a pending civil action for
infringement or who intends to commence such
an action may apply ex parte for the issuance of a writ of
search and seizure directing the alleged infringing defendant
or expected adverse party to admit into his premises the
persons named in the order and to allow the search,
inspection, copying, photographing, audio and audiovisual
recording or seizure of any document and article specified in
the order
Administrative Actions for TM Enforcement
Section 166, Goods Bearing Infringing Marks or Trade
Names may be barred from commerce through customs
exclusion proceeding
Criminal Penalties for Counterfeiting
SECTION 170. Penalties. - Independent of the civil
and administrative sanctions imposed by law, a criminal
penalty of imprisonment from two (2) years to five (5) years

and a fine ranging from Fifty thousand pesos (P50,000) to
Two hundred thousand pesos(P200,000), shall be imposed
on any person who is found guilty of committing any of the
acts mentioned in Section 155, Section 168 and Subsection
169.1. (Arts. 188 and 189, Revised Penal Code)
Trademarks Online
VeriSign, estimates that 70% of domain names associated
with top brands are not registered by the true brand owner,
prompting rights holders to defensively register their marks
as domain names
Trademark owners are also facing new types of
infringement, including user-traffic diversion through
keywords and meta tags, or unauthorized linking and
framing
Metatags
A 'meta tag' or 'meta data' is a keyword or phrase
embedded in a website's HTML (hypertext markup
language) code as a means for Internet search engines to
identify and categorize the contents of the website
Pau Duman / Intellectual Property Rights / Prof. Amador / Page 34
In the United States of America, in the case of Brookfield
Communications Inc. v. West Coast Entertainment Corp, 50
U.S.P.Q. 2d 1545 (9th Cir. 1999), the Court regarded the
practice of meta tagging as potential trademark
infringement, stating that such use might suggest
sponsorship or authorization by the trademark owner, or
that consumers looking for the products of the trademark
owner might be misdirected and diverted to a competitor's
website and be at least initially confused in their search for
the trademarked goods
Sale of Trademarks as Keywords
Retailers, for example, have purchased keywords so that
their banner advertisements are displayed whenever certain
trademarked products are the object of a search
Retailers, for example, have purchased keywords so that
their banner advertisements are displayed whenever certain
trademarked products are the object of a search
In Playboy Enterprises Inc. v. Netscape Communications
Corporation, C.D. Calif., No. SA CV 99-320 AHS (Eex) (June
24, 1999), the Court denied preliminary relief stating that
the 'Playboy' and 'Playmate' keywords sold by the defendant
were used by searchers as common or generic words, not
the marks
Pop-Up Advertisements
Pop-up ads are used as marketing tools designed to capture
consumers' attention, and are based on software designed
to track users' online activity and then deliver targeted
advertising based on their preferences

In American case of Washington Post Newsweek Interactive
Co. v. Gator Corp., Civil Action No.02-909-A, July 16, 2002,
the Court issued a preliminary injunction that prohibited the
defendant from enabling third-party advertising to appear
on a user's computer screen while the user was viewing
websites owned or affiliated with the plaintiffs, who were
online news companies. The Court found that the software
violated the plaintiffs' trademarks by causing pop-up
advertising to appear in proximity to them.
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