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    © All Rights Reserved
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    7 views17 pages

    Scanned From A Xerox Multifunction Printer

    Uploaded by

    Raymond Rogacion

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 17
    AFFIDAVIT. 1, Sunny Van Goethem, a citizen of Belgium, with business address at Posttaat 1, 6135 KR Sittard, The Netherlands, having been sworn according to law, hercby depose and state that: 1 | am an Authorized Signatory of DSM IP ASSETS B.Y., a corporation ‘organized and existing under the laws of The Netherlands with principal ‘address at let Overloon 1, 6$11 TE Heerlen, Netherlands. DSM IP Assets [B.. is a part of Royal DSM, which isa global science-based company factive in health, nutrition and materials Gointly referred to. 98 "the ‘Compeny”, which term includes its predecessors, successors, asignecs, subsidiaries, afiliats and licensees in business, ite and interes), ‘As an intellectual property expert assisting the Company since 2007, 1 am ‘aly authorized to execute this Affidavit for, and on behalf ofthe Company ‘and am fully acquainted with the business internationally of the Company nd is afiliates and its trademark portfolio worldwide, including that in the Prilppines. ‘The formative trademark, “HY-D” (otherwise, “HY-D mark"), was fist registered on September 26 1995 (Application April 15, 1994) inthe USA, and was first used inthe USA since April 151995, and has been openly and continuously in use since then. ‘The Company's HY-D mark is internationally well-known and has been registered worldwide, as evidenced by the summary hereto attached as ‘Annex “A” and made an integral part hereof, showing alist ofthe countries, territories and jurisdictions where the Company's HY-D mark is registred, or where epplications to register the same have been filed and are pending. 4.1 A.selet sampling ofthe Copies of Cerificate of Registration ofthe THY-D mark, a0. in Europe and USA in Clas 5, thatthe Company has obtained worldwide and throughout the years ae attached hereto a8 Annex “BY and made as integral pats hereof. Such copies are faithful reproductions of the original Certificates of Registration thet the Company has on ile. 42. The HY-D mark is protected in 47 jurisdictions worldwide, including: USA, China and the counties of the European Union (EU). Please se the attached overview. 43° Given the foregoing, it i undeniable that the HY-D mark is internationally well-known based on the itera set out in Rule 102 ‘of the Philippine Rules and Regulations on Trademarks which provides that: Rule 102, Crteri for determining whether « mark is well- ‘known. In determining wheiner a mark Is well-known, Page 1 ofS the following eiteria or any combination thereof may be taken into account: the duration, extent and geographies area of any use ‘of the mark, in particular, the dumtion, extent and feographical area of any promotion of the mark, including advertising or pubicity and the presentation, at fairs or exhibition, of the goods “andlor services to which the mark applies; . the market share in the Philippites and in other ‘countries ofthe goods and/or servees to which the mark applies; the degre of the inerent or acquired distinction of, the mark; 44. the qualty-image o reputation cq €. the extent to which the mark has been registred in the world by the mark; the exclusivity of registration stained by the mark in the world |& the exten 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 atibuted te the mark inthe world; J. the record of sucessful protection ofthe rights in the mark; the outvome of litigations dealing with the issue of ‘whether the mark isa well-known mark; and the presence or absence of identical or similar marks validly registered for or used on icentical or similar goods or services and owed by persons other than the person claiming tht his mark i a well-known ‘mak, 5. Furthermore, based on the number of registration certificates obtained by the Company in various counties, i is undeniable thatthe Company has ‘enjoyed exclusive rights to the use ofits HY-D mark in those counties Page 2of5 , ‘The HYD mark is one of the most wellknown brand names for 25- HYDROXY VITAMIN D6, vitamin used on animals to provide them with 4 fast tack to a strong sKeleton and beter performance. More detailed information can be Found at: ‘ngps./irwow dsm, com/marketvanhlen_USVoroduct/produets- ‘The products of the Company bearing the HY-D marks have been widely advertised in various forms of media thus incurring substantial advertising and promotional expenditures [A simple Google search forthe HY-D marks (keyword: HY-D VITAMIN) provides a number of over 16 milion search results. A screen capture ofthe first three pages of the Google search results is attached hereto as Annex C> All is once mire proves the worldwide well-estabisied fae of te HY-D mark. ‘Anached as Annex “D” are extacts of international marketing campaigns ‘showing the use ofthe Company's products bearing the HY-D mark as well a samples of advertising materials promoting the Company's products bearing the HY-D mark Doe tothe promotion and marketing strategies ofthe Company, the sles of ‘the HY-D products inthe Philippines forthe past 10 years have amounted to over PhP 60SM. Attached at Annex “E® are products bearing the HY- mark being sold in the Philippines. Attached as Annex "Fare samples of invoices concerning sales of products bearing the HY-D mark in the Philippines over the past 5 years. Products bearing the Company's HY-D marks have been widely sold in the Philippines since 2008 up to the present through it distributors and by independent local retailers. In fact, the Applicant EQUALIVET, INC. was a former distributor of the HY-D products from 2015 until 2018 which necessarily acquainted the Applicant of the existence of the Company's well-known HY-D marks, The Company was surprised to have learned that the Applicant went on to file an aplication forthe registration ofthe mark ‘

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