Intellectual Property Law

Question 1

What is a mark

Answer 1

Visible sign capable of distinguishing the goods or services of an enterprise and shall include a stamped or marked container of goods

Question 2

Marks that cannot be registered

Answer 2

1. Consists of immoral, deceptive or scandalous matter or matter which may disparage or falsely suggest a connection with persons
2. Consists of the flag or coat of arms or other insignia of the Philippines or any foreign nation
3. Consists of a name, portrait, or signature identifying a particular living individual except by written consent or portrait of deceased president of the Philippines during the life of his widow except when given written consent of the widow
4. Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date
5. Is identical with or confusingly similar to or constitutes a translation of a mark which is well known internationally and in the Philippines
6. Identical with a mark considered well known in accordance with the preceding paragraph which is registered in the Philippines with respect to goods which are not similar to those with respect to which registration is applied for
7. Is likely to mislead the public particularly as to the nature, quality, characteristics or geographical origin of the goods or services
8. Consists exclusively of signs that are generic for the goods or services that they seek to identify
9. Consists exclusively of signs that that have become customary or usual to designate the goods or services
10. Consists of signs that may serve as a description of a customary things
11. Consists of shapes that may be necessitated by technical factors
12. Consists of color alone
13. Contrary to public order or morality

Question 3

Colorable Imitation

Answer 3

Denotes such a close or ingenious imitation as to be calculated to deceive ordinary persons or such a resemblance to the original as to deceive an ordinary purchase giving such attention as a purchaser usually gives and to cause him to purchase the one supposing it to be the other

Question 4

Generic Terms

Answer 4

Which constitute descriptive name of an article or substance or comprise the genus of which the particular product is a species or are commonly used as the name or description of a kind of goods or imply reference to every member of a genus and the exclusion of individuating characters or refer to the basic nature of the wares or services provided rather than to more idiosyncratic characteristics of a particular product

Question 5

Descriptive Terms

Answer 5

Understood in its normal and natural sense it forthwith conveys the characteristic, functions, qualities, or ingredients of a product to one who has never seen it and does not know what it is

Question 6

Suggestive Terms

Answer 6

Those in which in the phraseology of one court require imagination, thought, and perception to reach a conclusion as to the nature of the goods

Question 7

Trademark: Subject Matter

Answer 7

Goods manufactured or produced

Question 8

Trademark: When does protection starts

Answer 8

Issuance of Certificate of Registration

Question 9

Trademark: Duration of Right

Answer 9

10 years and may be renewed upon filing a request any time within 6 months before expiration or withing 6 months after such exploration upon payment of an additional fee

Question 10

Declaration of Actual Use

Answer 10

1. Within 3 years from filing date of application; extendible for another 6 months
2. Another DAU within 1 year from the 5th anniversary of the registration
   3.And within 1 year from date of renewal of the trade registration

Question 11

Period to cancel registration?

Answer 11

within 5 years from the date of registration

Question 12

Trademark Infringement

Answer 12

Any person who shall without the consent of the owner of the registered mark:
1. Use in commerce any reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with the sale including preparatory stages of manufacturing likely to cause confusion or to cause mistake or to deceive; or
2. Reproduce, counterfeit, copy, or colorably imitate a registered mark whether there is actual sale of goods or services using the infringing material

Question 13

Test to determine Infringement

Answer 13

1. Holistic or Totality Test- considers the entirety of the marks in question
2. Dominancy Test- Focus is on prevalent or dominant features. cCons

Question 14

Remedies for Trademark owners upon Infringement

Answer 14

1. Recover damages which shall be based on the reasonable profit which the complaining party would have made
2. Seek Injunction
3. Seek the destruction of infringing materials

Question 15

Copyright: Subject matter of the right

Answer 15

Literary, scientific, or artistic work

Question 16

Copyright: Protection starts

Answer 16

Upon Creation

Question 17

Copyright: Duration of right

Answer 17

Lifetime of the author + Generally 50 years after the death of the author

Question 18

Definition of Copyright

Answer 18

Right of literary property as recognized and sanctioned by positive law

Question 19

What are Original Works?

Answer 19

Original intellectual creations in the literary and artistic domain protected from the moment of their creation

Question 20

What are Derivative Works

Answer 20

1. Dramatizations, translations, adaptations, abridgment, arrangements, and other alterations of literary or artistic works; and
2. Collections of literary, scholarly, or artistic works and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents

Question 21

Works that are not protected

Answer 21

1. Any idea
2. Procedure
3. System method
4. Concept
5. Principle
6. Discovery
7. Mere data
8. News of the day and other miscellaneous facts
9. Any official text of a legislative, administrative or legal nature as well as any official translation thereof

Question 22

Rule on works of the government

Answer 22

No copyright shall subsist in any work of the Government of the Philippines

Question 23

Economic Rights of an Author

Answer 23

1. Reproduction of the work or substantial portion of the work
2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work
3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership
4. Rental of the original or a copy of an audiovisual or cinematographic work
5. Public display of the original or a copy of the work
6. Public performance of the work
7. Other communication to the public of the work

Question 24

Ownership of Copyright

Answer 24

1. Original- Author
2. Works of Joint authorship- co-authors shall be the original owners of the copyright and in absence of agreement shall be governed by rules on co-ownership
3. Works during employment- employee if discovered outside of regular duties; employer if discovered during regular duties
4. Commissioned work- Person who commissioned the work shall have ownership of the work but the copyright shall remain with the creator
5. Audiovisual work- Producer, composer of the music, the film director, and the author of the work so adapted
6. Letters- Writers
7. Anonymous and Pseudonyms Works- Publishers shall represent the authors of the articles published without the name of the author unless the contrary appears or discloses his identity

Question 25

Limitations on Copyright

Answer 25

The following acts shall not constitute copyright infringement
1. Reproduction of a work exclusively for the use of the blind, visually and reading-impaired persons provided they shall be made on a non-profit basis.
2. Recitation or performance of a work once it has been lawfully made accessible to the public if done privately and free of charge or if made strictly for a charitable or religious institution
3. Making of quotations from a published work
4. Reproduction to the public by mass media articles on current political, social, economic, or religious topic, lectures, addresses and other works of the same nature
5. Reproduction to the public of works as part of reports of current events
6. Inclusion of works made by way of illustration for teaching purposes and compatible with fair use
7. Recording made in schools for the use of such schools, universities, or educational institutions
8. Ephemeral recordings
9. Use of work by Philippine government
10. Public performance where no admission fee is charged
11.Public display of the original or copy of the work not made by means of a film, slide, tv image or otherwise on screen.
12. Any use made of a work for the purpose of any judicial proceeds or giving professional advice

Question 26

Rule on work of architecture

Answer 26

Shall include the right to control the erection of any building which reproduces the whole or substantial part of the work either in its orignal form or in any form recognizably derived from original.

Question 27

Reproduction of Published works

Answer 27

1. Reproduction of a single copy- shall be permitted even without authorization of the owner of copyright.
2. Reproduction by Libraries- any library or archive whose activities are not for profit may, without the authorization of the author of copyright make a single copy of work by reprographic reproduction

Question 28

Terms of Protection of Copyright

Answer 28

1. General- Life of Author + 50 years after death
2. Joint Authorship- Life of authors + 50 years after death of last author
3. Anonymous or Pseudonym Works- 50 years from date on which the work was first lawfully published
4. Works of Applied Art- 25 years from making
5. Photographic Work- 50 years from publication of work, if unpublished 50 years from making
6. Audio-visual works- 50 years from date of publication if unpublished from making
7. Performers- 50 years from performance, sound or image recordings, 50 years from the end of the year of recording took place
8. Broadcast- 20 years from the date of the broadcast took place

Question 29

What is Patent

Answer 29

Grant issued by the government giving the inventor the right to exclude others from making using or selling his invention design or utility model within the country for a specific term in exchange of his patentable disclosure

Question 30

Kinds of Patent

Answer 30

1. Invention Patent
2. Design Patent
3. Utility Model

Question 31

Non-patentable Inventions

Answer 31

1. Discoveries, scientific and mathematical methods
2. Schemes rules and methods of performing acts playing games or doing business and programs for computers
3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practices on the human or animal body
4. Plant variety or animal breeds or essentially biological process for the production of plants or animals.
5. Aesthetic Creations
6. Contrary to public order or morality

Question 32

Elements of a Patent

Answer 32

1. Novelty- not be considered new if it forms part of a prior art
2. Inventive Step- not obvious to a person skilled in the art
3. Industrial Applicability- produced and used in any industry

Question 33

Contents of Application

Answer 33

1. Request
2. Description
3. Drawing necessary
4. On or more claims
5. An abstract

Question 34

Grounds for Cancellation of Patent

Answer 34

1. Invention is not new
2. Patent did not disclose the invention in a manner sufficiently clear and compete for it to be carried out by any person skilled in the art
3. Contrary to public order or morality

Question 35

Patent: Term

Answer 35

20 years from the filing date of the application