General
The Philippines is an archipelago in Southeast Asia located in relation
to several of the region’s main bodies of water: the Philippine
Sea, the South China Sea, Sulu Sea, Cel-ebes Sea and Luzon Strait. It
is composed of 7,107 islands, with 79 provinces and 117 chartered cities.
Being a tropical country, the Philippines’ climate ranges from hot
and dry to cool and rainy. It has one time zone, 120° East Meridian
Time, which is eight hours in advance of the Greenwich Mean Time (GMT).
The Philippines was a Spanish colony from the 16th century until it
was ceded to the United States in 1898 following the Spanish-American
War through the 1898 Treaty of Paris. In 1935, the Philippines became
a self-governing commonwealth. The ten-year transition to independence
was thereafter commenced. The Second World War how-ever, marked the
Japanese occupation in the Philippines from 1942, which was re-gained
by the joint American and Filipino forces in 1945. The Philippines became
inde-pendent from U.S. supervision and control on 04 July 1946.
In recent years, through the Government’s efforts in promoting
tourism in the country, the Philippines has achieved prominence in the
Southeast Asian Region and the world over for its wonderful destinations,
recreation areas and white-sand beaches, dining and accommodations,
shopping, entertainment and culture, particularly the nightlife and
music.
Economy
The Philippines is one of the fastest growing economies
in the South East Asian region and is primarily known for its industrial
growth, agricultural productivity and strong ser-vice sector, which
largely contribute to the country’s economic development.
The composite leading economic indicator (LEI) has sustained an upward
trend since October 2005. The country’s headline inflation rate
decreased by 0.9%, from 8.5% in March 2005 to 7.6% in March 2006. The
core inflation rate also decreased by 0.5%, from 7% in 2005 to 6.5%
in March 2006. While a higher and sustainable growth path is necessary
for the ultimate decrease in poverty, the GDP growth rate accelerated
to ap-proximately 5.0% between 2002 and 2005 reflecting the continued
resilience of the business and service sectors, particularly the strengthened
electronic, apparel and agri-cultural exports. The implementation of
the Revised Value Added Tax (RVAT) early in the year 2006, the prior
Expanded Value Added Tax (EVAT) and the high level of Over-seas Filipino
Workers’ (OFWs) annual remittances boosted the confidence of investors
and local businesses alike in the government’s fiscal ability,
which contributed to the es-calation of the value of the Philippine
Peso (PhP), at PhP51.219 per US$ in March 2006 from PhP56.341 per US$
in October 2004, making the Philippines, East Asia’s best per-forming
currency in 2005.
Important sectors of the Philippine economy include agriculture and
industry, particularly food processing, textiles and garments, electronics
and automobile parts, tobacco, co-conut and coconut products, rubber
products, wood, paper and paper products, chemi-cals, petroleum products,
and iron and steel. Mining is also notable since the Philippines possesses
significant reserves of chrome, nickel, copper, iron, lead, manganese,
gold and silver. The Palawan islands are likewise found to have natural
gas, thereby adding to the country’s substantial energy reserves.
Intellectual Property Law and Practice in the Philippines
Intellectual Property Code of the Philippines
Republic Act No. 8293, otherwise known as the Intellectual Property
Code of the Philip-pines, took effect on 01 January 1998. The IP Code
repealed Republic Act Nos. 165 (The Patent Law) and 166 (The Trademark
Law) and Presidential Decree No. 49 (The Copyright Law) to implement
the Philippines obligations under the Agreement on Trade Related Aspects
of Intellectual Property Rights (TRIPs). Aside from TRIPs, the Philip-pines
is also a signatory to the Paris Convention for the Protection of Industrial
Prop-erty, the Berne Convention for the Protection of Literary and Artistic
Works and the In-ternational Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations (Rome Convention).
A. Patent Law
The old Patent Law followed the first-to-invent system. In contrast the
IP Code has adopted the first-to-file rule. Moreover, under the IP Code,
patent applications are clas-sified into 3 categories, i.e., invention,
utility model and industrial design.
In order to obtain protection for an invention, utility model or industrial
design, the appli-cant must file a duly accomplished request form, containing:
the name and other data of the applicant, the inventor and the agent and
title of the invention, utility model or indus-trial design. The applicant
must also submit the abstract, specification, claims and for-mal drawings
of the invention, utility model or industrial design.
The term of an invention patent shall be 20 years from the filing date
of the application. On the other hand, the term of a utility model is
7 years from the filing date of the utility mode patent application,
without any possibility of renewal, while the term of an indus-trial
design is 5 years from the filing date of the application, and may be
renewed for not more than two consecutive periods of 5 years each.
The Philippines is also a signatory to the Patent Cooperation Treaty
(PCT) which en-tered into force in the Philippines on 17 August 2001.
Thus, the provisions of the PCT apply only to applications filed on
or after the said date in any of the member-states of the PCT. In order
to enter the national phase, the applicant should furnish the IPO a
copy of the PCT international application, wherein the Philippines is
one of the desig-nated states, the description, claims, drawings and
abstract of the invention within 20 months from the priority date based
on PCT Article 22(1), PCT Chapter I, or not later than 30 months from
the priority date based on PCT Article 39(1), PCT Chapter II.
B. Trademarks Law
The old Trademark Law adhered to the system of actual use in the acquisition
of trade-marks. Although Section 122 of the IP Code provides that rights
in a mark shall be ac-quired through registration, thus, effecting a
shift in the underlying philosophy of acquisi-tion of marks, it must
be emphasized that the Philippines has not totally discarded the actual
use system. Hence, the exclusive right acquired by a registrant is only
prima fa-cie and is without prejudice to existing prior rights. As such,
even after registration of a mark, the Philippine Intellectual Property
Office requires the registrant to file a Declara-tion of Actual Use
of the mark in Philippine Commerce in order to maintain its registra-tion.
In order to obtain a filing date, the applicant must submit a duly
accomplished form and facsimiles of the mark.
The Philippines follows the International (Nice) Classification of
Goods and Services for the Purposes of the Registration of Marks.
The prosecution of a mark usually takes around twelve 12 to eighteen
18 months. While, the term of a trademark registration is 10 years from
the date of issue, which may be renewed every 10 years thereafter.
C. Copyright Law
The IP Code recognizes that the following classes of works are protected
from the time of creation, irrespective of their mode or form of expression,
as well as their content or quality:
1. Books, pamphlets,
articles and other writings;
2. Periodicals and
newspapers;
3. Lectures, sermons, addresses,
dissertations prepared for oral delivery,
whether or not reduced in writing or other material form;
4. Letters;
5. Dramatic or dramatico-musical
compositions; choreographic works or entertainment
in dumb shows;
6. Musical compositions,
with or without words;
7. Works of drawing, painting,
architecture, sculpture, engraving, lithography
or other works of art; models or designs for works of art;
8. Original ornamental
designs or models for articles of manufacture, whether
or not registrable as an industrial design, and other works of applied
art;
9. Illustrations, maps,
plans, sketches, charts and three-dimensional works
relative to geography, topography, architecture or science;
10. Drawings or plastic works
of a scientific or technical character;
11. Photographic works including
works produced by a process analo-gous to
photography; lantern slides;
12. Audiovisual and cinematographic
works and works produced by a process
analogous to cinematography or any process for making audio-visual
recordings;
13. Pictorial illustrations
and advertisements;
14. Computer programs; and
15. Other literary, scholarly,
scientific and artistic works.
For a work to enjoy copyright protection, it must be an original creation.
The ideas in the work need not be new, but the form, in which they are
expressed, must be original. As a general rule, the work need not be registered
to be entitled protection. While the IP Code requires copies or reproductions
of the works to be deposited for registration with the National Library
or the Supreme Court Library within 3 weeks from the date of the first
public dissemination or performance, the same is only for completion of
library re-cords.
4 Related Laws
4.1 Plant Variety
Protection Act of 2002
On
19 July 2002, Republic Act No. 9168, otherwise known as the Plant Variety
Protec-tion Act of 2002, took effect. The purpose of the law is to
attain food security through the development of new plant varieties.
Towards this goal the law affords protection to and secures exclusive
rights for breeders of new plant varieties.
In
order to obtain a Certificate of Plant Variety Protection the plant variety
must be new, distinct, uniform and sustainable. Holders of a Certificate
of Plant Variety Protection shall have the right to authorize any
of the following acts:
1.
Production or reproduction;
2.
Conditioning for the purpose of propagation;
3.
Offering for sale;
4.
Selling or other marketing;
5.
Exporting;
6.
Importing; and
7.
Stocking for any purpose mentioned above.
The period of protection shall be 25 years from the date of the grant
of the Certificate of Plant Variety Protection for trees and vines, and
20 years from the said date for all other types of plants.
4.2 Optical
Media Act of 2003
On
3 March 2004, Republic Act No. 9239, otherwise known as the Optical
Media Act of 2003, took effect in order to address the issue of piracy
at its very core, by regulating the medium used. The law regulates
the manufacture, mastering and replication of opti-cal media
or any device that can store digital information, such as music, movies
and computer software.
The
law also reorganized the Videogram Regulatory Board into the Optical
Media Board, granting it the power to search, seize and take into
preventive custody any opti-cal media and/or material or equipment
used for illegal means.
Stiffer
civil and criminal penalties are also imposed. Thus, violators face
imprisonment of at least 3 years to 6 years and/or a fine of Five Hundred
Thousand Pesos (PhP500,000) to 1 Million Five Hundred Thousand
Pesos (PhP1,500,000).
5. News
and Latest Jurisprudence
5.1 The Philippines is Removed from the
United States’ Priority Watch List
In
light of the Philippines efforts to protect and strengthen its intellectual
property re-gime, the United States has removed the Philippines
from its Priority Watch List. The Philippines has been in the Priority
Watch List since 2001.
This
determination is the result of an Out-of-Cycle Review (OCR) on the
Philippines an-nounced in the April 2005 Special 301 Report. The OCR
concluded that throughout 2005, the Philippines bolstered implementation
of its special legislation that was passed to stop illegal
production of pirated optical discs such as CDs and DVDs by controlling
the licensing of and conducting raids against pirate optical disc
production facilities.
Pursuant
to Section 182 of the Trade Act of 1974, as amended by the Omnibus
Trade and Competitiveness Act of 1988 and the Uruguay Round
Agreements Act (enacted in 1994), under Special 301 provisions,
the United States Trade Representative must identify those
countries that deny adequate and effective protection for intellectual
prop-erty rights or deny fair and equitable market access for
persons that rely on intellectual property protection. Countries that
have
the most onerous or egregious acts, policies, or practices and whose
acts, policies, or practices have the greatest adverse impact (ac-tual
or potential) on relevant US products must be designated as Priority
Foreign Coun-tries.
5.2 The Philippines Fights Cable Piracy
One
of the numerous enforcement campaigns conducted recently that helped
remove the Philippines from the Priority Watch List was the initiative
undertaken by the Cable and Satellite Broadcasting Association
of Asia (CASBAA) to address the problem of ca-ble piracy in
the Philippines. CASBAA is an industry-based advocacy group that pro-motes
pay-TV services via cable, satellite, broadband and wireless video
networks across the Asia-Pacific.
In 2005, CASBAA
launched simultaneous raids against several Philippine
illegal cable television operators in Metro Manila and Mindanao.
CASBAA Chief Executive Officer, Simon Twiston Davies said that
“this is the first of a series of high-impact actions the industry
is taking
to highlight the seriousness of cable signal theft in the Philippines,
es-pecially for legitimate, law-abiding Filipino cable and satellite
TV operators.”
In
his recent visit to the Philippines, Mr. Davies and IPO Director General
Adrian S. Cristobal, Jr. agreed to further boost the Philippines anti-cable
piracy drive. During the meeting, Mr. Davies thanked the government
for its anti-piracy effort, adding that CASBAA is satisfied with
the results of the series of raids conducted by the National Bureau of
Investigation (NBI).
To
further boost the IPO’s anti-piracy drive, CASBAA proposed the holding
of a Philip-pine cable conference to further identify and discuss
issues affecting the Philippine ca-ble industry and raise public awareness.
CASBAA also offered to conduct trainings and seminars for law
enforcers and cable regulators on how to identify and combat cable
piracy.
5.3 Microsoft Corporation, et al.
vs. Hwang, et al. (GR No. 147043, 21 June 2005)
The
Philippine Supreme Court reversed the resolution of the Philippine Department
of Justice’s (DOJ) resolution dismissing the complaints against
respondents for copyright infringement and unfair competition.
In the case, by virtue of a search warrant, several pieces of
computer-related hardware, software and accessories were seized from
the respondents. During the preliminary investigation, the DOJ dismissed
the complaint for lack of evidence arguing that there was no
copyright infringement since the respondents did not manufacture or
reproduce the seized software but were in fact selling genuine Microsoft
software, having bought it from a Microsoft licensee. On appeal,
the Supreme Court set aside the resolutions of the DOJ and ruled
that the scope of copyright in-fringement is not merely the unauthorized
"manufacturing" of intellectual works but rather the unauthorized
performance of any of the acts covered by the Copyright Law.
The
Supreme Court held that the gravamen of copyright infringement is
not merely the unauthorized “manufacturing” of intellectual
works but
rather the unauthorized perform-ance of any of the copyright owner’s
exclusive rights. Hence, any person who performs any of the said
acts without obtaining the copyright owner’s prior consent renders
him-self
civilly and criminally liable for copyright infringement.
5.4 Shangri-La International Hotel Management
Ltd., et al. vs. Developer’s Group
of Companies, Inc. (GR No. 159938, 31 June 2006)
The
Supreme Court barred a Filipino restaurant company, Developers Group
of Com-panies Inc. (DGCI), from using Shangri-La International Hotel
Management Ltd.’s (SLIHM) trademark and “S” logo. The
Supreme
Court decision reversed the ruling of the lower and appellate courts
finding SLIHM liable for infringement and damages for using a confusingly
similar, if not identical, logo being used by the local company.
DGCI filed
an application for the registration of the marks “Shangri-La”
mark
and “S” logo in its restaurant business which was approved
by the
then Bureau of Patents, Trademarks and Technology Transfer (BPTTT)
on May 31, 1983. SLIHM insists, on the other hand, that it has used
the said marks as early as 1962. However, it was only in 1987 when
SLIHM actually used the marks in the Philippines.
In
the decision, the Supreme Court held that it would be great injustice
to adjudge
SLIHM of infringement since it is actually the originator and creator
thereof. The Su-preme Court ruled that the certificate of registration
is merely prima facie proof that the registrant is the owner of
the registered mark. Evidence of prior and continuous use of the mark
or trade name by another can overcome the presumptive ownership
of the registrant and may very well entitle the former to be declared
owner in an appropriate case.
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