Intellectual Property Law Flashcards
Trademark or Copyright or Patent
- subject matter is literary, scientific or artistic work
Copyright
- Trademark → goods
- Patent → new, useful, industrially applicable inventions
Where to Register
- Trademark
- Copyright
- Patent
- Trademark → IPO
- Copyright → National Library
- Patent → IPO
When does protection starts
- Trademark
- Copyright
- Patent
- Trademark → Issuance of CoR
- Copyright → Creation (kahit di pa registered)
- Patent → Application
Duration
- Trademark
- Copyright
- Patent
Out of the three, who is renewable?
- Trademark → 10 yrs
- Copyright → lifetime + 50 yrs after death
- Patent → 20 yrs
trademark ONLY
Trademark includes
- service mark
- collective mark
- trade name
- sound mark
True or False?
X sound mark
Marks which cannot be Registered
- Flag of PH and other countries
- Name, portrait, signature of living person (with XPN)
- Name, portrait, signature of dead president (with XPN)
- colorable imitation (with XPN)
What are the XPNs?
- Living Person → with writtent consent
- Dead President → with written consent of widow
- Colorable Imitation → if different industries
Marks which cannot be Registered
- internationally well-known
a. whether or not registered in PH
b. registered in PH
What type of goods are affected by a and b?
a. similar goods = on account of knowledge of relevant sector of public (not public at large)
b. different goods = since registered siya, mag eextend yung right kahit sa different goods → theory of dilution (e.g. Mang Inasal ginamit na name sa Hardware)
My right to a trademark is going to expire. I want to renew. What is the timeframe for the renewal?
- 6 months before expiration
- 6 months after expiration (but, with additional fee)
For registration and renewal of CoR, the company must also filed Declaration of Use. What is the timeframe for the filinf of DoU?
- after registration
- 5th year of registration
- after renewal
- after registration → within 3 years
- 5th year of registration → within 1 year
- after renewal → within 1 year
Trademark Infringement refers to use of another mark without consent.
Unfair Competition refers to use of another mark with fraudulent intent or intention of deceiving the public.
Yes
Trademark Infringement vs Unfair Competition
- If I want to file a case, which of the 2 is registration of trademark a pre-requisite?
Trademark Infringement (from the world itself infringement)
Tests to Determine Infringement
- Holistic or Totality Test
- Dominancy Test
Paano nangyayari yung dalawang yan?
- Holistic or Totality Test → consider entirety
- Dominancy Test → focus on dominant features
Unfair Competition includes passing off one’s goods as that of another.
Yes
Copyright only applies to original works. True or False?
False (also applies to derivative works)
As stated earlier, the general duration for copyright is lifetime + 50 years after death. The following are the exceptions
- works of applied art
- broadcasts
- others
- works of applied art → 25 years from date of making
- broadcasts → 20 years from date of broadcast
- others → X lifetime, 50 years from…
Non Copyrightable
- idea, procedure, system
- concept, principle, discovery or mere data
- news of the day
- format of TV program
- pertaining to law or government
Yes
Ownership of Copyright
- Joint Authorship
- During employment (when is it to employee? to employer?)
- Commissioned work (who is the owner? who holds the copyright?
- Joint Authorship = treat as co-ownership
During Employment
- employee → outside of regular duties (even if use of facility of employer)
- employer → regular duties
Commissioned Work
- commissioner → ownership of work
- creator → copyright
Doctrine of Fair Use (not an infringement)
- for criticism, comment, news reporting, teaching, etc.
Factors to Consider
- purpose and character of use
- nature of copyrighted work
- amount and substantiality of portion used in relation to whole
- effect of use on the potential market or value of copyrighted work
Yes
Copyright Infringement
- directly commits
- with knowledge of infringing activity → induces or contributes to infringing conduct of another
Yes
The right to a patent belongs to the inventor, his heirs or assigns.
If joint invention → jointly
Yes
I made an invention in 2021. However, I did not know how to register it. Then, someone made the same invention in 2024 and he registered it. Who has the right to the patent?
That someone (first to file rule)
What are the 3 criterias for patentability?
- novelty
- inventive step
- industrial applicability
Novelty
- not new if it forms part of a prior art
- non prejudicial disclosure
What does non prejudicial disclosure mean?
if ever someone disclosed information on your invention within 12 months before filing date, you won’t lose the chance to get the patent
- inventor
- patent office
- 3rd party (who got it from the inventor)
Inventive Step
- not obvious to a personal skilled in the art
Yes
Industrial Applicability
- can be produced and used in any industry
Yes
Kinds of Patent
- Invention
- Utility Model
- Industrial Design
For each of the 3, what are the criterias present? their duration?
Invention (eto yung generally naiisip natin sa patent so..)
- it has novelty, inventive step, industrial applicability
- 20 years, no renewal
Utility Model
- it has novelty, industrial applicability
- 7 years, no renewal
Industrial Design
- it has novelty, ornamentality
- 5 years, 2 five-year renewals
Non Patentable Inventions
- discoveries, scientific theories, math methods
- aesthetic creations
- rules and methods of mental acts, games, doing business, computer programs
- methods for treatment of human or animal body
- plant varieties or animal breeds (with XPN)
What is the XPN?
- plant varieties or animal breeds → microorganisms and non-biological
Registration of Patent
- Unity of Invention → 1 Application = 1 Invention (group of inventions forming a single concept)
Ownership of Patent
- During employment (when is it to employee? to employer?)
- Commissioned work (who is the owner? who holds the copyright?
During Employment (same as copyright)
- employee → outside of regular duties (even if use of facility of employer)
- employer → regular duties
Commissioned Work (not same as copyright)
- commissioner → patent
2 Kinds of Patent Infringement
- Literal Infringement = exactly being copied or plus other elements
- Doctrine of Equivalents = substantially the same function, same means, same result
What is the most important to be the same in “Doctrine of Equivalents”?
Doctrine of Equivalents → ang pinakaimportante na same is yung means (all 3 must exist)
