The genius of Philippine Trademarks

Filipino’s ingenuity goes both ways. We can think of smart ideas but sometimes they cross the line into infringement. But we can harness this genius in creating “marks” of our own. To illustrate, there are 4 types of trademarks in terms listed in the order of their strengths:

1) Arbitrary (made up, original) Ex. Exxon, Kodak

2) Suggestive (suggesting a product in the mind) Ex. Coppertone

3) Descriptive (trait emphasized) Ex. Quarter Pounder

4) Generic (natural inference). Ex. Mineral Water

Arbitrary trademarks bear no relationship to the products or services to which they are applied. Suggestive trademarks imply some particular characteristics of the good or service to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the good or service. A descriptive term identifies a characteristic or quality of the goods or services such as color, function, dimensions or ingredients. They are can only be protected if they have acquired secondary meaning in the minds of the consuming public. Lastly, generic terms are names of a particular genus or class of which an individual article or service is but a member.[1]

There are two cases which have recently caught the headlines. The word Ginebra has been considered “generic” in a legal battle between two liquor companies. The one who won sought to register and the losing company protested and sought to protect it’s own mark and claim confusing similarity. The IPO claimed that the word “ginebra” is generic and couldn’t have obtained secondary meaning in favor of the losing company. The standard in trademark disputes is that generic trademarks cannot be subject of registration or subject to cancellation. Why then did the IPO “approve” the trademark application if the word in question is generic? Think about it.

The other case is obviously a case of “riding” on the popularity of an arbitrary name. Harvard University went after a clothing company using the school name for a brand of jeans. This is clear cut. Trademark confusion creates a cause of action for the owner of the mark because it will cause confusion as to the origin of the goods. We all know that Harvard does not make jeans. If that be the case, I would go for further studies at Levi’s University.

In summary, it is best to consult a legal professional before making product names public. You wouldn’t want to be caught drinking a strong colorless alcoholic beverage without jeans.

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[1] Zatarains v. Oak Grove, U.S. Court of Appeals for the 5^th Circuit (698 F.2d 786, 1983).

Why you should NOT buy pirated CDs or DVDs

It may seem so easy for any of us to do such a thing. But when you realize that it is more expensive to buy a hotdog at the place of honeyed burgers than it is buy a silver disc of pirated material, it becomes an easier choice. But what is paramount is that buying pirated material is a crime. Whether it is easy to do or cheap to buy, the act is still criminal.

Taking aside the criminal aspect, the real reason for not buying pirated material is the economic incentive that is lost. The reason why our government affords copyright protection is to provide a security measure for a return on investment. All of us want to earn money. Most of us are earning our daily bread by doing things we don’t love. But those who write the music and make the movies are doing exactly what they love to do.

Making music and movies takes money. These artists, if you are willing to call them that, put up money up front for the costs of making their work. One album could cost easily six figures to make and that just the recording studio. Movies are a whole other ball game. It is not uncommon for an action movie from a major U.S. studio to run a figure of more than 100 million.

The only way for them to see that money come back is for us, the economic power that we are, to buy their products legitimately. When you buy pirated material, you give money to scrupulous men who don’t know how to make movies or write music. The wrong people are making money.

If the money comes back to the artists, they will in turn make more music and more movies for us to enjoy. Come on, we all love to hear our music and see our movies. But when there are no more new ones, we will be stuck with watching Conan, the Barbarian over and over again.

You might argue that these creative minds are making too much money such as J.K. Rowling who is now a billionaire. But that argument doesn’t hold water when you buy your cell phone load. Do you see anyone complaining when the Ayala’s are raking it in or when MVP is upping his monthly per diem.

If we had a choice, we wouldn’t want to buy fake burgers or fake sodas. Why should you settle for less when it comes to music or movies?

Apple contributing to music piracy

Indirectly, Apple is contributing to music piracy in the Philippines. How so? Read on.

First of all, I must applaud Apple for creating one of the world’s greatest innovations. The design and simplicity of the iPod makes it easy for everyone from 4 to 80 to use. But innovativeness in their proprietary thinking has led to selfishness which has led to music piracy. Did I make it more confusing? Bear with me please.

As every iPod owner will know, the only way to load songs to the little white machine is through a music library in iTunes. Well, ok, I forgot the little white cable. The capacity of these iPods range from the mundane 1GB to the monstrous 160GB. It’s not just music, you can now load pictures and full length movies. Again, the latter has to be in the iPod proprietary format. Am I boring you now, don’t worry, the next paragraph is the core of the article.

Where do the owners of these iPods get their songs and movies? From itunes.com? Think again. There is no iTunes for the Philippines! That means that no one with a Philippine based credit card can purchase a song for 42 pesos (99 cents). Most people (and you know who you are!) will load their iPods from tiangge type establishments for 5 pesos song and 100 pesos per movie. If they won’t load, they will download the songs they want through utorrent or other illegal means. If not that way, they will buy a 30 peso (is it still 30?) pirated CD and rip it to their iTunes. One little sweet revenge is that they will have to type the song info one by one so that the song title will register in their iPod.

I don’t want to brag, but because of my legal practice, I stick to a non-pirated mode of loading iPods. My newly tuned philosophy has redounded to my 12 year son. He refuses to log on to the downloading websites despite the fact that we have had DSL broadband for 2 years now. Secondly, we are at an impasse on how to convert original DVDs to the iPod movie format (Any tips?). I had to thicken my face and ask a friend of mine (actually client) to buy $50 worth of iTunes cards in the U.S. My son still has $35 balance as of this writing.

With so many iPods out there, where are all the songs coming from? When was the last time you bought an original music CD? I am sure there are only a handful of us who still do. iPod has thickened both sides of the fence. Their popularity has renewed interest in music. The more music is out there, the more business for otolaryngologists (ear doctors). Seriously though, if the source for iPods is scarce, nay, non-existent in this country, a resort to unsavory means is inevitable.

But we should not blame the buyers of iPods. I dare say that Apple should make iTunes accessible to Filipinos. I am sure that after reading this blog, I would have converted a four year old and an 80 year old to stop pirating music. If the source of our music is easily reached and affordable, we will have more new songs to appreciate (just no more NKOTB, please.) More new songs, more new iPods.

So, Apple, make iTunes for the Philippines possible!

Newspaper sued for copyright infringement

My client posted this on his blog.

Photog sues major newspaper for copyright infringement

More updates as the come.