Born Free

The second topic for our blog in the subject Tech and the Law is “The use of competing marks in a corporate sponsored event” on a liberal point of view which pertains to the spectator’s side.

Lots of people are into sports competition nowadays (except me, not a sports fan since birth, sorry). My facebook newsfeed is usually flooded by posts about FIBA, PBA and of course the Azkals. The Azkals are undeniably famous these days. Further made loud noises when Angel Locsin and Phil Younghusband became an item (oh yeah, I am into celebrity buzz) . Here is a hypothetical question based on the topic.

Supposing there is a corporate event and one of the sponsors of said event is a famous brand of clothing here in the Philippines which is “Cute apparel”. Let us assume that said event is a game of the Azkals Football team which is a sports event supported by a lot of their avid fans. Now, a non-sponsor brand which is also a famous brand of clothing, a competitor, “Pretty clothing”, gives away free pass for the said event and such recipients are expected to wear blouse and other apparels for exposure and advertising. During the game, the spectator wearing “Pretty clothing” is requested to leave since “Cute apparel” is one of the sponsors of the said event. Is the Spectator liable? Should he leave?

The word “mark” is defined as 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.1 Mark is a distinguishing quality, an impression and even a designation.  Marks are acquired through registration made validly in accordance with the provisions of the Intellectual Property Code. 2 There are certain requirements to be met before a mark can be registered which can be found in section 123 of the same code. 3

Liberalism on the other hand, is a political philosophy or worldview founded on ideas of liberty and equality.4 It is a political current embracing several historical and present day ideologies that claim defense of individual liberty as the purpose of government. The word “liberal” was derived from the Latin word “liber” which means free.5

Freedom is a guaranteed right by the Constitution.. The Constitution mandates that “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” This is embodied in section 1, Article III. Section 2 of the same reiterates the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge. Section 4 is also clear when it states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”The freedom of religion and the liberty of abode on the other hand is guaranteed in section 5 and 6. The Constitution also protects the freedom to know information of public concern, the freedom to form unions, the freedom to have private property which cannot be taken away without just compensation.

Other laws supporting freedom are, to wit:

Section 12 (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

Section 17. No person shall be compelled to be a witness against himself.

Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

Article 32 of the Civil Code also provides that any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages. Such rights and liberties include freedom of religion, speech, the freedom to write for the press or to maintain a periodical publication; Freedom from arbitrary or illegal detention; Freedom of suffrage; The liberty of abode and of changing the same; The right to become a member of associations or societies for purposes not contrary to law; The right to take part in a peaceable assembly to petition the government for redress of grievances; The right to be free from involuntary servitude in any form; The right of the accused to be heard; Freedom from being compelled to be a witness against one’s self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and Freedom of access to the courts.6

            It is now evident that many laws support our liberty such as Article 93 of the Civil Code7. Article 13378, on the other hand, speaks of circumstances when freedom is taken advantage of.  

                In the case of Gonzales vs Comelec, A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance. The crucial question in this case is Whether or not there is infringement of liberty. The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political decision-making, and of maintaining the balance between stability and change. The trend as reflected in Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-open. It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. “It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Freedom of speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then?9

          This Court spoke, in Cabansag v. Fernandez; 2 of two tests that may supply an acceptable criterion for permissible restriction. Thus: “These are the ‘clear and present danger’ rule and the ‘dangerous tendency’ rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high’ before the utterance can be punished. The danger to be guarded against is the ‘substantive evil’ sought to be prevented.” It has the advantage of establishing according to the above decision “a definite rule in constitutional law. It provides the criterion as to what words may be public established.”

          The Cabansag case likewise referred to the other test, the “dangerous tendency” rule and explained it thus: “If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.10

The freedom of expression is a fundamental principle of our democratic government. It “is a ‘preferred’ right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom.”11

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system.12 This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.13 Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.14 For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.15

            In the case of German vs Barangan, German et al, went to JP Laurel St to pray and worship in St Jude Chapel. But they were barred by General Barangan and his underlings from entering the church because the same is within the vicinity of the Malacanang. And considering that German’s group is expressively known as the August Twenty One Movement who were wearing yellow shirts with clench fists, Barangan deemed that they were not really there to worship but rather they are there to disrupt the ongoings within the Malacanang. The issue in this case is Whether or not the bar disallowing petitioners to worship and pray at St. Jude is a violation of their freedom to worship and locomotion. In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same into action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education, 16 thus:

The realm of belief and creed is infinite and limitless bounded only by one’s imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (Emphasis supplied)

Petitioners likewise invoke their freedom of locomotion under Section 5, Article IV of the Constitution. Suffice it to say that the restriction imposed on the use of J.P. Laurel Street, the wisdom and reasonableness of which have already been discussed, is allowed under the fundamental law, the same having been established in the interest of national security.

            Justice Teehankee in a dissenting opinion stated constitutional principles in the landmark case of J.B.L Reyes vs Bagatsing17 wherein “The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights. 7 Freedom of worship, alongside with freedom of expression and speech and peaceable assembly “along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary—even more so than on the other departments—rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes ‘as the sovereign prerogative of judgment.’ Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy.”

            In an article I have read excerpts of Assistant Attorney General Thomas E. Perez’s remarks at the Conference on the Transformation of Security and Fundamental Rights Legislation in Kuala Lumpur, Malaysia, he stated that the freedom and protection strengthens and serves the other.

 “Free speech likewise is not a license to harass or discriminate, and our civil rights laws protect individuals from discrimination and harassment in schools, the workplace, housing and other areas. For example, civil rights laws guarantee nondiscrimination in education, and this means being able to learn in an environment free from harassment based on race, religion, gender or ethnicity.

Our enforcement of equality through the civil rights laws [is] thus interwoven with our protections for freedom of conscience, religion and expression. Each protection strengthens and serves the other. Our laws protect individuals from violence, harassment and discrimination based on race, religion and similar characteristics. But true national harmony cannot exist if people are not protected and ensured equal opportunity. Authentic harmony similarly requires discussion, learning and exchange of ideas.

Free speech can be messy, it can interject uncertainty, but ultimately it has been our experience that it is an absolute necessity to achieving real national harmony. And just as harmony in music is not achieved when everyone sings the same note, we do not expect everyone to espouse the same ideals. We achieve harmony when we are able to respect our differences — and differences of opinion — and to enforce our laws in consonance with the principles we share.” 18

Based from the above cited laws and jurisprudence, it is now safe to say that  our constitutional rights are protected and we are free to say what we want, to do what we want, since this is a free country. Of course, this is not absolute. Provided that what we do, say, wear is not contrary to law, morals, public order, and public policy. By analogous, it is now safe to say that we can advertise a brand that we want or wear a brand we like. No one should dictate or force us to say, do, listen, wear or advertise things we do not like. We are entitled to it. We have the right to express ourselves through clothing. We have freedom of expression and we live in a free country.

            In the hypothetical problem above, I firmly stand that the spectator has the right to wear the brand he or she likes even in a sponsored event. The spectator decides what he or she wears. He or she has the freedom to express his fashion statement. No one has the right to ask that person to leave, further to dictate him what he should wear or what he should not. Provided that the spectator does not wish any harm to the said sponsor or clothing or to do any speech or actions that requires intervention of the police power of the state. Provided further, that the spectator wearing the brand does not do anything contrary to law, morals, public order and public policy. In the case of Tiongco vs Aguilar, Justice Davide wrote, “For every right carries with it a corresponding obligation. Freedom is not freedom from responsibility, but freedom with responsibility.”19

            Justice Romero in Osmena vs. COMELEC further wrote that: “Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or privilege of free speech and publication has its limitations, the right not being absolute at all times and under all circumstances. For freedom of speech does not comprehend the right to speak whenever, however, and wherever one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled. Still, while freedom of expression may not be immune from regulation, it does not follow that all regulation is valid. Regulation must be reasonable as not to constitute a repression of the freedom of expression. First, it must be shown that the interest of the public generally, as distinguished from that of a particular class requires such regulation. Second, it must appear that the means used are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”20

            The intention of the spectator is also important. What if he is a super fan of azkals and went to the event just to watch silently and chose to wear a brand which is a non-sponsor. Should he be asked leave? Even without doing anything? That would be unfair and an injustice and a violation of our human rights. It would be a violation of our human right to wear what we want provided it is decent.If the said sponsor really wants that the said brand should only be the brand the spectators are wearing, it should be made knowledgeable to public. Or better yet, said sponsor must have an  exclusive event of its own.

            This is a free country. Our heroes and ancestors fought very hard for our liberty. It is important that we use this liberty in good faith. Let us use these liberties in a way which will not violate the laws. Always remember, we are born free. Your Freedom will always be a part of you.

________________________________________

1-      Section 121.1 of Intellectual Property Code of the Philippines (RA8293)

2-      Section 122 of RA8293

3-      Sec. 123. Registrability. –

123.1. A mark cannot be registered if it:

(a) Consists of 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 deceased President of the Philippines, during the life of his widow, if any, except by written consent of the widow;

(d) Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of:

(i) The same goods or services, or

(ii) Closely related goods or services, or

(iii) If it nearly resembles such a mark as to be likely to deceive or cause confusion;

(e) Is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is registered here, as being already the mark of a person other than the applicant for registration, and used for identical or similar goods or services: Provided, That in determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than of the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark;

(f) Is identical with, or confusingly similar to, or constitutes a translation of a mark considered well-known in accordance with the preceding paragraph, which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for: Provided, That use of the mark in relation to those goods or services would indicate a connection between those goods or services, and the owner of the registered mark: Provided further, That the interests of the owner of the registered mark are likely to be damaged by such use;

(g) Is likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services;

(h) Consists exclusively of signs that are generic for the goods or services that they seek to identify;

(i) Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in bona fide and established trade practice;

(j) Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services;

(k) Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value;

(l) Consists of color alone, unless defined by a given form; or

(m) Is contrary to public order or morality.

123.2. As regards signs or devices mentioned in paragraphs (j), (k), and (l), nothing shall prevent the registration of any such sign or device which has become distinctive in relation to the goods for which registration is requested as a result of the use that have been made of it in commerce in the Philippines. The Office may accept as prima facie evidence that the mark has become distinctive, as used in connection with the applicant’s goods or services in commerce, proof of substantially exclusive and continuous use thereof by the applicant in commerce in the Philippines for five (5) years before the date on which the claim of distinctiveness is made.

123.3. The nature of the goods to which the mark is applied will not constitute an obstacle to registration.

4-      Wikipedia, the Free Encyclopedia, Liberalism, http://en.wikipedia.org/wiki/Liberalism

5-      Liberalism, http://www.wordiq.com/definition/Liberalism

6-      Article 32 of the New Civil Code

7-      Art. 93. Freedom of religion shall be observed by public officials in the issuance of authorization to solemnize marriages. Consequently, no public official shall attempt to inquire into the truth or validity of any religious doctrine held by the applicant or by his church.

8-      Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress.

9-       G.R. No. L-27833, April 18, 1969

10-   27 SCRA 835; G.R. L-27833; 18 APR 1969

11-  Salonga a Cruz Paño, supra, pp. 458-459. See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18, 1969; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191, June 5, 1973; National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207 SCRA 712, 715, March 31, 1992.

12-  137 Phil. 471, 492 (1969).

13-   Salonga v. Cruz-Pano, G.R. 59524, February 18, 1985, 134 SCRA 458-459; Gonzales v. COMELEC,137 Phil. 489, 492-3 (1969); Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., 151-A Phil. 676-677 (1973); National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715.

14-  Indeed, the struggle that attended the recognition of the value of free expression was discussed by Justice Malcolm in the early case United States v. Bustos, 37 Phil. 731, 739 (1918). Justice Malcolm generalized that the freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. Despite the presence of pamphlets and books early in the history of the Philippine Islands, the freedom of speech was alien to those who were used to obeying the words of barangay lords and, ultimately, the colonial monarchy. But ours was a history of struggle for that specific right: to be able to express ourselves especially in the governance of this country.

15-  GR168338, February 15, 2008

16-  106 Phil. 2.

17-  125 SCRA 553 (1983).

18-  http://thephilanews.com/freedom-of-expression-in-the-united-states-39230.htm

19-  G.R. No. 115932. January 25, 1995

20-  G.R. No. 132231.  March 31, 1998

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One thought on “Born Free

  1. Pingback: Students’ Take: Contacts viz RA 10173, Competing advertising in sponsored events, and Direction of Copyright Reform | Berne Guerrero

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