Friday, August 30, 2013

HYPOTHETHICAL SITUATION : “ IT IS ABOUT THE USE OF SPONSORED SPORTING EVENTS e.g. FIBA, IF THE EVENT IS SPONSORED BY BRAND A, AND A NON-SPONSOR BRAND B GIVES OUT TICKET TO SUCH EVENT, WITH THE RECIPIENTS OF SUCH TICKETS ARE EXPECTED TO WEAR THE BRAND ( TRADEMARK OR TRADENAME ) FOR EXPOSURE “




Regarding the use of competing trademarks in a sponsored sporting event in FIBA, in which the event was, sponsored then by Brand A and in such manner the competing Brand B who is then a non-sponsor brand who gives out tickets to such event in which the real sponsor of that FIBA event is Brand A.  Because being the main sponsor of such event, Brand A, who is the recipient of such tickets, they expect that people who shall participate or watch the said event should wear the brand for the exposure of their products.
As correctly phrased by us the public, the basic issue presented for our consideration is WHETHER OR NOT BRAND B IS OF SUCH CHARACTER THAT IS CALCULATED TO DECEIVE OR CONFUSE THE PUBLIC TO THE INJURY OF BRAND A, to which the brand who sponsored the event belongs.
Let us then make certain distinctions, and analyze as to the meaning of TRADEMARK AND TRADENAME.
Under Sec. 121 (3) of the Intellectual Property Code of the Philippines, it states that:
TRADENAME means the name or designation identifying or distinguishing an enterprise.
Trade name is any individual name or surname, firm name, device or word used by manufacturers, individualists, merchants and others to identify their businesses, vocations, or occupations.
As the Trade name refers to the business and its goodwill...., the Trademark refers to the goods, the ownership of a trademark or trade name is a property right which the owner is entitled to protect “since there is damage to him from confusion or reputation or goodwill in the mind of the public as well as from confusion of goods “. The modern trend is to give emphasis to the unfairness of the acts and to classify and treat the issue as fraud.
Since Brand A and Brand B are both engaged in similar business, the dominant facts is that Brand A is the primary sponsor of the event and Brand B has no right to appropriate the same for use on its products which are similar to those being sponsored by Brand A.
Brand A had no idea why Brand B chose to give out tickets to the event in which they are then the major sponsor.  And the record discloses no reasonable explanation for the Brand B’s contention of giving out such tickets on that event.  Such unexplained use by them lends itself open to suspicion of fraudulent motive to trade upon Brand A’s reputation.
A boundless choice of words, phrases, symbols, advertising techniques, and marketing strategies is available to one who wishes a trademark sufficient unto itself to distinguish his product from those of others.  When, however, there is no reasonable explanation for Brand B’s choice of such mark through the field for his selection was so broad, the inference is inevitable that it was a chosen deliberately to deceive.
The fact that brand A, who is the legitimate trader as well as the sponsorship of the FIBA event evidencing of Brand A’s product in the Philippines, give evidence to Brand A’s claim that it has earned a business reputation and goodwill in this country.
The best proof that the company of Brand B in the market in the country and that there was actual use for protracted period of Brand A’s trademark or part thereof through sales and sponsorship. 
The most convincing proof of use of a mark in commerce is testimony of such witnesses, as customers, patrons for the commercial use during such period.  Brand B’s witness, having affirmed her lack of business connections with Brand A, has testified as such patrons, supporting strongly Brand A’s move for trademark pre-exemption.
Any sale made by legitimate trader from his store is a commercial act of business to the general public, not only to limited individuals.  It is a matter of public knowledge that all brands of goods filters into the market, indiscriminately sold by jobbers dealers and merchants not necessarily with the knowledge or consent of the manufacturer.
Such actual sale of goods in the local market establishes trademark use which serves as a basis for any action aimed at trademark pre-exemption.  It is corollary logical that Brand A is licensed to do business; it means that its goods are being sold and earned a reputation or goodwill as regards to its products.
Since it was an event, there should be a better determination with regards to not to confuse the viewing public of the event to the prejudice of Brand A.
The determinative factor in ascertaining whether or not marks are confusingly similar to each other “is not whether the challenged mark on the tickets would actually cause confusion or mistake on the part of the buying public.”  It would be sufficient, for purposes of the law that the similarity between the two companies on their tickets or advertising scheme is such that there is possibility or likelihood of the purchaser of the sponsoring company mistaking the new brand for it.  Even if not of the details just mentioned were identical, with general appearance alone of the 2 companies, any ordinary, or even perhaps, even is not too perceptive and discriminating could be deceived.
Such actions of Brand B are not tenable and for my own opinion, the action in general contention of both companies Brand B and Brand A, in which would evidently create a likelihood of confusion among the purchasing and viewing public of the FIBA.  But even assuming arguendo that the trademark is already known unlike that of Brand B, the likelihood of confusion would still subsists, not on the purchaser’s perception of the goods but on the origins thereof.  By giving out the tickets on that occasion are likely to be mistaken as having been co-produced by Brand B.
The risk of damage is not limited to a possible confusion on the sponsoring company but also includes confusion of reputation of the public could reasonably assume that the goods of the parties originated from the same source.
The Brand A have the exclusive right to prevent all 3rd persons not having the owner’s consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which he trademark is registered where such use would result in a likelihood of confusion.  Because of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
The company of Brand A is not here seeking to enforce any legal or control rights arising from or growing out of, any business which it has transacted in the Philippine islands. The sale purpose of the action:
Is to protect its reputation, its corporate name, its goodwill whenever that reputation, corporate name, its goodwill whenever that reputation, corporate name or goodwill have, though the natural development of its trade, established themselves.  And it contends that its rights to the use of its corporate and trade name.
Is a property right, a right in recess which it may assert and protect against all the world, in any of the courts, even in jurisdiction where it does not transact business just the same as it may protect its tangible property, real or personal against trespass or conversion.
Since it is trade and not the mark that is to be protected, a trademark acknowledges no territorial boundaries of municipalities or states or nations but extends to every market where the sponsors’ goods have become known and identified by the use of the mark.
The object of the government is to accord a member extensive protection against infringement and other types of unfair competition.
The pertinent provision of RA No. 166 (Trademark Law) states that:
Sec. 22 Infringement, what constitutes – any person who shall use, without the consent of the registrant; any reproduction, counterfeit, copy or colourable imitation of any registered mark or trade name in connection with the sale, offering for sale, or advertising of any goods, business or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others or to the source or origin of such goods or services or identify of such business; or to reproduce, counterfeit, copy or colorable imitation any such mark or trademark and apply such reproduction, counterfeit, copy or colourable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with such goods, business or services; shall be liable to a civil action by the registrant for any or all of the remedies herein provided.
Practical application, however, of the aforesaid provision is easier said than done.  In the history of trademark cases in the Philippines, particularly in ascertaining whether one trademark is confusingly similar to or is colourable imitation of another, no set rules can be deduced.  Each case must be decided on its own merits.
                But likelihood of confusion is a relative concept; to be determined only according to the particular, and sometimes peculiar, circumstances of each case. It is unquestionably true that, as stated in Coburn vsPuritan Mills, Inc.: “In trademark cases, even more than in other litigation, precedent must be studied in the light of the facts of the particular case.”
Likewise, it has been observed that:
In determining whether a particular name or mark is a “colorable imitation” of another, no all-embracing rule seems possible in view of the great number of factors which must necessarily be considered in resolving this question of fact, such as the class of product or business to which the article belongs; the product’s quality, quantity, or size, including its wrapper or container; the dominant color, style, size, form, meaning of letters, words, designs and emblems used; the nature of the package, wrapper or container; the character of the product’s purchasers; location of the business; the likelihood of deception or the mark or name’s tendency to confuse;
etc. 25
Proceeding to the task at hand, the essential element of infringement is colorable imitation. This term has been defined as “such a close or ingenious imitation as to be calculated to deceive ordinary purchasers, or such resemblance of the infringing mark to the original as to deceive an ordinary purchaser giving such attention as a purchaser usually gives, and to cause him to purchase the one supposing it to be the other.” 
Colorable imitation does not mean such similitude as amounts to identity. Nor does it require that all the details be literally copied. Colorable imitation refers to such similarity in form, content, words, sound, meaning, special arrangement, or general appearance of the trademark or trade name with that of the other mark or trade name in their over-all presentation or in their essential, substantive and distinctive parts as would likely mislead or confuse persons in the ordinary course of purchasing the genuine article. 
In determining whether colorable imitation exists, jurisprudence has developed two kinds of tests — the Dominancy Test applied in Asia Brewery, IncvCourt of Appeals and other cases and the Holistic Test developed in Del Monte Corporation vCourt of Appeals and its proponent cases. 
As its title implies, the test of dominancy focuses on the similarity of the prevalent features of the competing trademarks which might cause confusion or deception and thus constitutes infringement.
. . . If the competing trademark contains the main or essential or dominant features of another, and confusion and deception is likely to result, infringement takes place. Duplication or imitation is not necessary; nor is it necessary that the infringing label should suggest an effort to imitate. On the other side of the spectrum, the holistic test mandates that the entirety of the marks in question must be considered in determining confusing similarity.
In determining whether the trademarks are confusingly similar, a comparison of the words is not the only determinant factor. The trademarks in their entirety 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 he may draw his conclusion whether one is confusingly similar to the other. 
To arrive at a proper resolution of this case, it is important to bear in mind the following distinctions between infringement of trademark and unfair competition.
(1) Infringement of trademark is the unauthorized use of a trademark, whereas unfair competition is the passing off of one’s goods as those of another.
(2) In infringement of trademark fraudulent intent is unnecessary whereas in unfair competition fraudulent intent is essential.
(3) In infringement of trademark the prior registration of the trademark is a prerequisite to the action, whereas in unfair competition registration is not necessary. 8
In this situation, these factors should always be considered in determining whether two trademarks are confusingly similar, the two marks in their entirety as they appear in the respective labels must 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 on both labels.
On this situation it is so unjust for Brand B to give out such tickets knowingly that they are within the vicinity of the FBA with being Brand a as the major sponsor of such event.  Their rights have to respected and the government must lay a hand in protecting such company from Infringement and Unfair Competition.




Thursday, July 4, 2013

" IS THE ACT OF A PERSON, A, DISCLOSING THE MOBILE NUMBER OF B, TO A THIRD PERSON, WITHOUT B's CONSENT, CONSIDERED A VIOLATION OF RA 10173 " ?



           
         
           I shall begin this with stating the initial right of an individual with regards to his or her privacy that will definitely affect each and everyone's life.
            
Sec. 5 Article 2 of the constitution provides that “The maintenance of peace and order, the protection of life, liberty and property, and the promotion of general welfare are essential for the enjoyment by all the people of the blessing of democracy.”
           
Under this provision, it had covered one important aspect in the provision of the Constitution, which is the privacy of the individuals so with their families which have been violated time  again by people who shall physically trespass in order to invade their lives, reproduction of it for commercial purposes and proprietary purposes.

The right to privacy is a fundamental right guaranteed by the Constitution.  Therefore, it is the obligation of the government to show that RA 10173is justified by some compelling interest and that is narrowly drawn

The right to privacy is a constitutional right, granted recognition independently of its identification with liberty.  It is recognized and protected in several provisions of our Constitution, specifically in Sections 1, 2, 3 (1), 6, 8 and 17of the Bill of Rights.  Areas of privacy are also recognized and protected in our laws, included in certain provisions of the Civil Code and the Revised Penal Code as well as in special laws.

            Since the introduction of the proliferation of high tech gadgets with very intrusive modern visual or auditory  enhancement devices, such as powerful that enable the invasion of private areas, to take the act of trespassing to whole new and different level.

          Because of the developments, harassment and trespass already threatens not only the public persons and their families, but it shall also threaten the private persons as well as their families too, in which it will create media interest.

            Now through vast and fast development of technology, it had introduced more and more new gadgets, new creations that will make our lives easier, with which it is now that we are confronted with new diversity in prying to each private lives.  Because of this tremendous advancement in technology, most of us now are so eager to show of this new kind of electronic gadgets. Thus, we are now prone to the fact that we could now easily give the necessary information beyond our control.

            The RA 10173 aims to protect the fundamental right of privacy of communication and thus it shall secure and protect us from the confidentiality of our data, personal lives as well.  This act shall govern us and thus immediate implementation shall be done immediately. Proper observance of the Act shall be advantageous to all of us most especially in the business sector and thus through this economy shall then prosper.

           With the question provided above, in my legal analysis, it had violated the bill Republic Act 11073 or The Data Privacy Act of 2012 which was approved into law last August 15, 2012. This applies to processing of personal and sensitive personal information. 

           The fact that A did not even ask the permission or the consent of B that his/her cellular number shall be given to C as the third person; this had violated one of the provisions under the said Bill.
            
           Under Sec 4, Scope - This Act applies to the processing of all types of personal information and  to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office,  branch in the Philippines subject to the immediately succeeding paragraph: Provide, That the requirements of Section are complied with.

          In this question, it had always been a habit of people nowadays, to just give someone's cellular number without the decency of asking the Data subject. Consent of the data subject should be given freely, specific informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her.

Consent shall be evidenced by written, electronic or recorded means. It may also given on behalf of the data subject by an agent specifically authorized by the data subject to so.

         In this case, there was not even a single consent was asked or given by the data subject A, this is already a basis on the violation of the said RA 10173. Even for whatever purpose it may serve the third person give the staid number of the data subject, does not eliminate the probability that the privacy of data subject had been violated. It might do him/her any harm or annoyance shall then be done on the data subject.

            In some similar cases, this may also be conducted in some instances, if this information is to comply with a legal obligation, then the third person who shall be the information collector has the obligation to obey then by the necessity of the information in the legal sense; if it shall be of national emergency then the need for the information shall be vital for the public order and security then.

 I myself don not really like nor I shall feel so safe and secured by the fact that my number was given to a certain person of whom I done even know nor was my consent to give such information was asked.  

       Nowadays, we shall guard one's safety because of the more proliferation of people who will just walk into our lives and eventually shall put our lives and so with our families in such danger. This people will take advantage of the data subject, harass him/her or their family members, they can even use promotional tactics to dissuade the data subject and lure him/her and then a certain act had been committed, crimes like sexual harassment, rape and robbery. 

       With this Bill, adequate protection will be given to individuals, they might be private or public individuals from personal intrusion, for commercial; purposes and also against intrusions on their privacy due to any activities which was undertaken in connection with the reproduction and broadcast of their private activities.

       The fact that B gave the number of A to a third person had violated one of the criteria cited in Sec 12, of the said bill, regarding Criteria for Lawful Processing of Personal Information under the first one which was that " The data subject has given his or her consent ". No consent was given by the data subject A. The violation of which can the data subject a file a necessary complaint on B.

            The Data Privacy Act clearly defines Personal Information as:

                        Sec. 3 (g) Personal Information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when he put together with other information would directly and certainly identify an individual.

There is so much sensitivity on the said case; different sections of the bill shall be enumerated with regards to the violation in which B has committed to A. There was mishandling of personal data on the part of the data subject A. Any person should always be aware of the things that should be divulge or shall be given freely to people whom you don' really know personally, because they might be the reason in the future that might or shall bring you to eminent danger.  

The mere knowledge of one's cellular number by friend or acquaintance should one or a third person asks it from you. be aware that you should ask first for the consent of that individual, so as you shall not be liable under this Privacy Act.

       With this, I held that B shall be penalized in accordance to Sec 25 of the said Act if proven that he violated the grounds as stipulated on this Act.      

       With this Bill, the State recognizes its vital role of information and communication technology in the nation building and its inherent obligation to ensure that personal information in the information and communication systems in the sector are secured and protected. The President signed this Data Privacy Act 10173 which shall then require the preservation of personal data collected by public and private entities.

       With regards to this RA 10173, not only the public and private entities will benefit from this Bill, even the rapidly growing businesses, like the Call Centers into outsourcing sector of the Philippines, as it aims to protect personal digital data of private and public entities, even the likes of the Banks, who have the pertinent data of their clients. Private Information should be handled with utmost confidentiality.

       This will therefore pave the way for better business practices in companies and there would be more and more business opportunities in attracting potential investors here in the Philippines. For the private entities like us we shall be therefore shielded by the law's mandate against possible crime and abuses from the outside world of the people who have prying on ones private life.
     
      Because of the introduction of this RA 10173, it shall give us a certain peace of now, with regards to eventually proliferation of gadgets nowadays, our privacy will be readily available in just as snap of a finger. There is also a rampant abuse in the use of such high tech gadgets, cellular phones are within the limits that it can magnify every simple data, photos, videos, recordings etc., which shall be friendly to others but for those people of cruel intentions will surely exploit each and everyone's private life.

I therefore, as an individual will adhere to the RA 10173, it shall guard me from    people who would exploit me in some way or another in their prying eyes for the fact that being a wife of a public official.

In this age where information is within anyone’s reach, the issue then of privacy is something we should tackle seriously. Identify the holder of the information, or the thief and other crimes can occur when personal data are not being processed securely. And what is so frustrating like this case is that the fact that even the nearest people you know can easily divulge information to a third party without us knowing.
     
 I had so much experienced with regards such exploitation, so till now. Neither can I give my number without me knowing who that person is, in order to protect the lives of my children too.

With regards to this Act, there may be so many different prospective on this Act, and yet it is to be identified and should prove the effect of this act because we could not easily pinpoint nor discuss the advantages and disadvantages. 
The burden lies with its application and implementation where it would be more of the government’s responsibility of disseminating and explaining the real objective and intent of such act in order to really affect growth and promote innovation for the purpose of nation building.

The Data Privacy Act provides for a wide scope of application, as it applies to the processing of     
“all types of personal information and to any natural and juridical person involved in personal information processing “ including personal information controllers and processors who, although not found in the Philippines, use of high tech equipments and or have offices or branches located in the country. It must be noted, however, that the Data Privacy Act expressly excludes from its coverage the processing of personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions which is being processed in the Philippines.

            Another important feature is the differentiation of “personal information from “sensitive personal information”.  Under the law, “personal information” as stated above. On the other hand, “sensitive personal information” refers to personal information: (1) about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations: (2) about an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings: (3) issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or current health records, licenses or its denials, suspension or revocation, and tax returns: and (4) specifically established by an executive order or an act of Congress to be kept classified.

            The distinction is significant in the processing of “sensitive personal information” is generally prohibited, except in some cases enumerated in the Act (which includes consent).  In contrast, the processing of “personal information” is allowed, subject to compliance with the requirements provided in the law.

            The Data Privacy Act provides for criminal penalties, (including imprisonment and fine) for specific violations of the Act.  Examples of violations penalized are unauthorized processing, improper disposal, processing for unauthorized purposes, unauthorized access or intentional breach, concealment of security breaches, and malicious disclosure of personal information and sensitive personal information.

            The actions to consider, under the Data Privacy Act, public and private person, entities should review the existing data privacy policies in force or implement one if none is in place.  The broad definition under the law means that most entities would be considered as “personal information processors”, which means that the specific obligations under the law must be considered and applied

We should also be aware that in every transaction, security, and integrity is often required.  Our life, your life, anyone’s life should always be private.  It is only the works of man that some lives lose their sense of privacy.  Just like the public officials whose life are an open book and viewed by the public so more together with our actors and actresses, in which their lives are imbued with private interest.  Still, this public figures, politicians as they are, there should be part of their lives too that should be treated with privacy.

Everyone should always respect the privacy of others; everything has its own limitations too. It had always been that, the right of privacy is one of the most threatened rights of a man living in this society, and such threats may come from various sources, one of them are the people whom you don’t really know.  We shall be then stark naked in the eyes of a stranger.


End Notes:
Sources
“1987 Philippine Constitution- The LawPhil Project. “ Philippine Laws and Jurisprudence Databank- The Lawphil Project

“Republic Act No. 10173 AN ACT PROTECTING INDIVIDUAL PERSONALINFORMATION IN INFORMATION AND COMMUNICATION SYSTEMS IN THE GOVERNMENTAND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION AND FOR OTHER PURPOSES also known as Data Privacy Act of 2012