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IPL Digest

IPL Digest

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Published by jongreyes

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Categories:Topics, Art & Design
Published by: jongreyes on Aug 22, 2010
Copyright:Attribution Non-commercial


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respondents.FACTS : La Tondeña Distillers , Inc. (LTDI) filed a case against Distilleria Washington for theseizure of 18,157 empty bottles bearing the blown-in marks of La Tondeña Inc. and GinebraSan Miguel. Said bottles were being used by Washington for its own products without theconsent of LTDI.LTDI asserted that as the owner of the bottles they were entitled for the protection extendedby RA no. 623 (An Act to regulate the use of duly stamped or marked bottles, boxes, kegs,barrels and other similar containers). Washington countered that RA no. 623 should notapply to alcoholic beverages and the ownership of the bottles were lawfully transferred to thebuyer upon the sale of the gin and the containers at a single price.The trial court rendered a decision favoring Washington and ordered LTDI for the return of the seized bottles. LTDI appealed the decision to the Court of Appeals. The appellate courtreversed the court
a quo
and ruled against Washington.ISSUE : Whether or not ownership of the empty bottles was transferred to Washington?HELD : The fact of the matter is that R.A. 623, as amended, in affording trademark protectionto the registrant, has additionally expressed a
prima facie
presumption of illegal use by apossessor whenever such use or possession is without the written permission of theregistered manufacturer, a provision that is neither arbitrary nor without appropriaterationale.The above-quoted provisions grant protection to a qualified manufacturer who successfullyregistered with the Philippine Patent Office its duly stamped or marked bottles, boxes, casksand other similar containers. The mere use of registered bottles or containers without thewritten consent of the manufacturer is prohibited, the only exceptions being when they areused as containers for "sisi," "bagoong," "patis" and similar native products.It is to be pointed out that a trademark refers to a word, name, symbol, emblem, sign or device or any combination thereof adopted and used by a merchant to identify, anddistinguish from others, his goods of commerce. It is basically an intellectual creation that issusceptible to ownership
and, consistently therewith, gives rise to its own elements of 
jus posidendi 
jus utendi 
 jus fruendi 
 jus disponendi 
, and
jus abutendi 
, along with the applicable
 jus lex 
, comprising that ownership. The incorporeal right, however, is distinct from theproperty in the material object subject to it. Ownership in one does not necessarily vestownership in the other. Thus, the transfer or assignment of the intellectual property will notnecessarily constitute a conveyance of the thing it covers, nor would a conveyance of thelatter imply the transfer or assignment of the intellectual right.
G.R. No. L-48226 December 14, 1942
respondent.FACTS : Petitioner has continuously used “Ang Tibay” both as trademark and tradename inmanufacture and sale of slippers, shoes and indoor baseballs since 1910 and paid for advertising expense for such. Respondent registered the same for pants and shirts on 1932without expending for advertisement. For such reason petitioner eventually filed a case.The trial court ruled in favor of the respondent on the grounds that the two trademarks aredissimilar and are used on different noncompeting goods.ISSUE: Whether or not respondent is guilty of infringement?HELD :
The courts have come to realize that there can be unfair competition or unfair trading even if the goods are non-competing, and that such unfair trading can causeinjury or damage to the first user of a given trade-mark, first, by prevention of thenatural expansion of his business and, second, by having his business reputationconfused with and put at the mercy of the second user 
. Then noncompetitive productsare sold under the same mark, the gradual whittling away or dispersion of the identity andhold upon the public mind of the mark created by its first user, inevitably results. The originalowner is entitled to the preservation of the valuable link between him and the public that hasbeen created by his ingenuity and the merit of his wares or services. Experience hasdemonstrated that when a well-known trade-mark is adopted by another even for a totallydifferent class of goods, it is done to get the benefit of the reputation and advertisements of the originator of said mark, to convey to the public a false impression of some supposedconnection between the manufacturer of the article sold under the original mark and the newarticles being tendered to the public under the same or similar mark. As trade has developedand commercial changes have come about, the law of unfair competition has expanded tokeep pace with the times and the element of strict competition in itself has ceased to be thedetermining factor. The owner of a trade-mark or trade-name has a property right in which heis entitled to protection, since there is damage to him from confusion of reputation or goodwillin the mind of the public as well as from confusion of goods. The modern trend is to giveemphasis to the unfairness of the acts and to classify and treat the issue as a fraud.
The doctrine of "secondary meaning" in trade-mark is to the effect that a word or phrase originally incapable of exclusive appropriation with reference to an article of the market, because geographically or otherwise descriptive, might nevertheless havebeen used so long and so exclusively by one producer with reference to his articlethat, in that trade and to that branch of the purchasing public, the word or phrase hascome to mean that the article was his product
G.R. No. L-20635 March 31, 1966ETEPHA, A.G.,
respondents.FACTS : On April 23, 1959, respondent Westmont Pharmaceuticals, Inc., a New Yorkcorporation, sought registration of trademark "Atussin" placed on its "medicinal preparationof expectorant antihistaminic, bronchodilator sedative, ascorbic acid (Vitamin C) used in the
treatment of cough". The trademark is used exclusively in the Philippines since January 21,1959.
Petitioner, Etepha, A. G., a Liechtenstin (principality) corporation, objected. Petitioner claimsthat it will be damaged because Atussin is so confusedly similar to its Pertussin (RegistrationNo. 6089, issued on September 25, 1957) used on a preparation for the treatment of coughs,that the buying public will be misled into believing that Westmont's product is that of petitioner's which allegedly enjoys goodwill.To the question: May trademark ATUSSIN be registered, given the fact that PERTUSSIN,another trademark, had been previously registered in the Patent Office? — the Director of Patents answered affirmatively. Hence this appeal.ISSUE : Whether or not ATUSSIN may be registered?HELD: We are to be guided by the rule that the validity of a cause for infringement ispredicated upon colorable imitation. The phrase "colorable imitation" denotes such a "closeor ingenious imitation as to be calculated to deceive ordinary persons, or such aresemblance to the original as to deceive an ordinary purchaser, giving such attention as apurchaser usually gives, and to cause him to purchase the one supposing it to be the other.A practical approach to the problem of similarity or dissimilarity is to go into the
of thetwo trademarks pictured in their manner of display. Inspection should be undertaken from theviewpoint of a prospective buyer. The trademark complained of should be compared andcontrasted with the purchaser's memory (not in juxtaposition) of the trademark said to beinfringed.
Some such factors as "sound; appearance; form, style, shape, size or format;color; ideas connoted by marks; the meaning, spelling, and pronunciation, of words used;and the setting in which the words appear" may be considered.
For, indeed, trademarkinfringement is a form of unfair competition.Confusion is likely between trademarks, however, only if their 
presentations in any of the particulars of sound,
, or meaning are such as would lead the purchasingpublic into believing that the products to which the marks are applied emanated from thesame source. In testing this issue, fixed legal rules exist — if not in harmony, certainly inabundance — but, in the final analysis, the application of these rules in any given situationnecessarily reflects a matter of individual judgment largely predicated on opinion. There is,however, and can be no disagreement with the rule that the purchaser is confused, if at all,by the marks
as a whole
.As we take up Pertussin and Atussin once again, we cannot escape notice of the fact thatthe two words do not sound alike — when pronounced. There is not much phonetic similaritybetween the two. The Solicitor General well-observed that in Pertussin the pronunciation of the prefix "Per", whether correct or incorrect, includes a combination of three letters P,
; whereas, in Atussin the whole starts with the single letter A added to suffix "tussin".Appeals to the ear are disimilar. And this, because in a word combination, the part thatcomes first is the
most pronounced 
. An expositor of the applicable rule here is the decision inthe Syrocol-Cheracol controversy.
There, the ruling is that trademark Syrocol (a coughmedicine preparation) is not confusedly similar to trademark
(also a coughmedicine preparation). Reason: the two words "do not look or sound enough alike to justify aholding of trademark infringement", and the "only similarity is in the last syllable, and that isnot uncommon in names given drug compounds".

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