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Trademark Patent: First To File Rule - If Two or
Trademark Patent: First To File Rule - If Two or
TRADEMARK
PATENT
Definition
When rights
over
intellectual
property is
conferred
Person
entitled to
the right
Any
visible
sign
capable
of
distinguishing
the
goods
(trademark) or services (service
mark) of an enterprise and shall
include a stamped or marked
container of goods
From the time of registration (from
the filing date of application)
Duration/Ter
m
What
CANNOT be
registered
a) Immoral,
deceptive,
or
scandalous matter, or matter
which may disparage or falsely
suggest
a
connection
with
persons,
living
or
dead,
institutions, beliefs, or national
symbols, or bring them into
contempt or disrepute
b) Consists of the flag or coat of
arms or other insignia of the
Philippines or any of its political
subdivisions, or of any foreign
nation, or any simulation thereof
c) Consists of a name, portrait or
signature identifying a particular
living individual except by his
written consent, or the name,
signature, or portrait of a
from
filing
date
of
d)
e)
f)
g)
h)
i)
Rights
conferred
deceased
President
of
the g) In case of drugs and medicines,
Philippines, during the life of his
there is no patentable invention
widow, if any, except by written
in the following instances:
consent of the widow
1) Mere discovery of a new form
Identical with a registered mark
or new property of a known
belonging to a different proprietor
substance which does not
or a mark with an earlier filing or
result in the enhancement of
priority date, in respect of: (i) the
the known efficacy of that
same goods or services; (ii)
substance
closely related goods or services,
2) Mere discovery of any new
or (iii) if it nearly resembles such
property or new use for a
a mark as to be likely to deceive
known substance
or cause confusion
3) Mere use of a known process
Generic terms for goods or
unless such known process
services
results in a new product that
Descriptive
marks
including
employs at least one new
characteristics of goods like
reactant
quantity or quality
Customary sign in everyday
language
Color by itself
shapes
Economic Rights: Exclusive right to carry a) Right to the exclusive use of the
out, authorize, or prevent the following
mark for ones own goods or
acts:
services
a) Reproduction of the work or substantial b) Right to prevent others from the
portion of the work
use of the same mark for
b) Dramatization, translation, adaptation,
identical goods or services in the
abridgement, arrangement or other
course of trade
transformation of the work
c) Right to the exclusive use of
c) First public distribution of the original
ones already registered mark
and each copy of the work
even for goods or services into
d) Rental of the original or a copy of an
which ones venture expands, if
audio-visual or cinematographic work
use by others for dissimilar
e) Public display of the original or a copy of
products is likely to damage the
the work
business interests of the first
f) Public performance of the work
venturer
How
infringement
is made
Moral Rights:
a) Require that the authorship of the works
be attributed to him, in a prominent way
on the copies, and with the public use of
the work
b) Make any alterations of his work prior to,
or to withhold it from publication
c) Object to any distortion, mutilation, or
other
modification
of,
or
other
derogatory action in relation to, his work
which would be prejudicial to his honor
or reputation
d) Restrain the use of his name with
respect to any work not of his own
creation or in a distorted version of his
work
a. When there is piracy or substantial
reproduction; if so much is taken that
the value of the original work is
substantially diminished or the labors of
the original author are substantially and
to an injurious extent appropriated by
another
b. A person infringes a copyright when
one:
o Directly commits an infringement
o Benefits from the infringing activity of
another person who commits an
infringement if the person benefitting
has been given notice of the infringing
activity and has the right and ability
to control the activities of the other
person
o With knowledge of the infringing
activity, induces, causes, or materially
Elements:
a) Making, using, offering for sale,
a) The trademark being infringed is
selling or importing a patented
registered in the IPO; however, in
product or a product obtained
infringement of trade name, the
directly or indirectly from a
same need not be registered
patented process, or the use of a
b) The trademark or trade name is
patented process without the
reproduced, counterfeited, copied
authorization of the patentee
or colorably imitated by the b) Steps
in
determining
the
infringer
presence of infringement:
c) The infringing mark or trade
1) Determine if there is literal
name is used in connection with
infringement. If there is literal
the sale, offering for sale, or
infringement, the defendant is
advertising
of
any
goods,
liable
business or services
2) If
there
is
no
literal
d) The use or application of the
infringement,
then
the
infringing mark or trade name is
doctrine of equivalents should
likely to cause confusion or
be applied.
mistake or to deceive purchasers
or others as to the goods or