Once again, Filipinos manifested how united we are in times of national competition in the recent FIBA ASIA 2013. Our over rated support to GILAS is overwhelming. We had the strength of a nation represented by one team whose will-power is boost by the support we have shown. GILAS players fired up by the repeated chanting of the words “puso and “laban”. We were not able to take home the glorious title but in the hearts of every Filipino, we had fulfilled a dream.
This is the same type of oneness we also show everytime Manny “Pacman” Pacquiao is on the ring fighting for Filipino’s pride. Every one stops on whatever they were doing to watch the fight. We ached for every punch, we shout for every blow, we cry for every defeat and celebrate for every battle won.
We feel proud too when a Filipino-blood artist enter an international competition. We have seen how Filipinos supported Jasmine Trias and Jessica Sanchez during their reign in American Idol. We couldn’t afford to miss a performance to cheer for them. We wouldn’t mind to spend a peso for their text votes or facebook likes.
Win or lose, these “icons” make us proud to be a Filipino. They give us hope that the Filipino race could go far all over the world. They bring out the “fan” in each of us.
Fans are, by nature, bias. They see the competition in their own point of view. That’s why after many games, both sides think the referee had made a wrong call somehow. Or that the judge has its own favourite. Both sides felt they were cheated. Then we tend to get involved where we even “coach” the players as if we were actually there. We get emotional too. The minute a player signed up with the other team, we felt betrayed and we condemn that player afterwards.
I have had my share of “fanatic” moments too. I have cried for the death of a matinee idol. I also hated one celebrity who transferred from my favourite TV station to the other network. I have done my research about certain celebrities, watch all of their shows, follow them in twitter or instagram and even go to their TV and mall shows. Thanks to the advances in technologies, stalking someone has been really handy.
It is true, die-hard fans engage in a variety of behaviours that may look strange, if not bizarre, to the outsiders. They may devote a considerable share of their time, their finances, and their emotional investments to supporting their idols. For this reasons, marketing businesses use these icons to promote their products and services. This is what we call “celebrity branding”.
Celebrity Branding is a type of advertising that focuses upon using celebrity power, fame, or popularity to gain recognition for their products and services. Advertisers use television commercials and print ads through billboards and magazines with these popular celebrities on the cover. They even sponsor an event to indulge the fans to participate or be part of, and at the same time allowing them to introduce their brand, build their reputation and develop deeper customer relationship. These companies often team up with an organization where they can best promote their products. More often than not, these events are in the form of sports competitions, concerts or fashion shows.
Brands are critical for creating business value. Strong brands command customer loyalty. Thus, the use of celebrities to endorse a brand can have its downsides. One mistake by a celebrity can be detrimental to the public relations of a brand. The celebrity must understand that he represents the brand and must maintain that image to protect the customer’s trust and loyalty. It is this loyalty which constitutes valuable assets that drive company revenue and growth. And at the heart of branding lie trademarks.
TRADEMARK LAW IN THE PHILIPPINES
A trademark (trade name) is a badge of origin that enables a customer to recognize a product of a particular company. It could be a word, a symbol, or sets of signs. As defined by Republic Act 8293 or the Intellectual Property Code of the Philippines, “Mark” means 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 (Section 121.1). Trademark distinguishes a company, its products and services from those of competitors. It helps a company to build a reputation in the market and to develop and retain a loyal clientele. It could also become a symbol of a lifestyle or behaviour. Thus, the sponsorship of NIKE to a prestigious sports event, such as UAAP or NCAA, can link the NIKE to the prestige, youth and dynamics of that event.
The rights in a mark shall be acquired through registration made validly in accordance with the provisions of RA 8293 (Section 122 of RA 8293). Section 123 of RA 8293 further enumerates the conditions when can a certain mark not allowed to be registered, to wit:
(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
The owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. (Section 147 of RA 8293).
By protecting their brand or trademark, organizers of events can ensure that the value and integrity of the event are maintained at the same time maximizing the commercial revenue from sponsorship, merchandising and licensing agreements to offset the cost of organizing the event and most of all inspire confidence among consumers that the product or image associated with the event is authentic, and that any advertising or promotion that makes reference to the event or to associated images is legitimate.
DRAWING THE LINE
A trademark is an exclusive right, which means that it gives its holder the right to exclude or stop others from using the mark. This raises the issue as to what extent can the trademark holder restrain others from using its mark. Do they have absolute right to it? Can they exercise such right in any way they wants to? Consequently, is there a need to draw the boundaries of exclusivity for trademark owners between the public’s basic constitutional right – the freedom of expression?
In the case where the viewing public is compelled to use a certain brand in order to be part of an event, the viewers’ right to choose what they want to use or wear is encroached. Thus, the viewing public could argue that the right given to trademark holders infringes on our constitutional right of freedom of expression, in that, as a citizen and audience, we had the right to choose what we want to wear or use to express our moods, feelings and thoughts. We could argue further that the right of freedom of expression should not be taken for granted just to invoke the trademark holders’ right to property. But will those arguments meritorious?
FREEDOM OF EXPRESSION
Section 4 of Article III of 1987 Constitution of the Philippines imposed 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 assembly and petition the government for redress of grievances.” Speech, expression and press include every form of expression. Freedom of expression ranks in the hierarchy of constitutional rights higher than property thus the norms for the regulation of expression place more stringent limits on state action. It defines liberty or a manner of exercising liberty thus needed for democracy to work properly. It includes not only the right to impart but also to seek and receive information. Freedom of expression is essential for the enjoyment of other human rights.
The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that “Everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Article 19 goes on to say that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “for respect of the rights or reputation of others” or “for the protection of national security or of public order, or of public health or morals”.
Jurisprudence has evolved three (3) tests to regulate the freedom of expression: (1) the dangerous tendency test, (2) the clear and present danger test, and (3) the balancing of interest test. The first two tests evolved in the context of prosecution for seditious speech. They are couched in terms of the degree of evil and proximity of evil they sought to avoid. The balancing of interest test serves the purpose for those that have no element of evil, such as for instance commercial speech. This theory rests on the principle that constitutional freedoms are not absolute and that they may be abridged to some extent to serve appropriate and important interest. It would be too much to insist that at all time and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. The balancing of interest principle “requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.”
Applying the balancing of interest test therefore, in determining whether there has been infringement by the trademark holder or event organizer when they require their audiences to use their products exclusively for that event, we need to look into the interests of both of the parties, the organizer and the audience, in relation to the purpose of said event. If the purpose is purely commercial, then the organizers has prerogative to imposed admission requirement, so long as it is reasonable and fair. If the purpose of the event however is non-commercial, then the people can invoke their right to freedom of expression.
Let’s illustrate through specific scenarios. For example, in a national basketball competition where GILAS will play in Araneta Coliseum against Korea Team. This event was sponsored by Adidas and Globe Telecom. Would there be a violation of freedom of expression if the organizer bans audiences who are not wearing Adidas shirt or even shoes, or who are not Globe subscribers? The purpose of the event is for a national competition where Filipino pride is on the table. Evidently, the interest of the organizers is to promote its products. The interest of the audiences, on the other hand, is to watch and cheer for their national team. Which interest has greater weight? Is it the organizer, for business and personal reasons? Or is it the public who wants to support their national team in a historic event? Public policy would dictate that we put greater weight to the interest of many than to the few. The interest of the people will prevail over the interest an individual capitalist. It would not be justified for the event organizer to restrain an interested viewer from the event just because he was not wearing an Adidas shirt.
What about in the case where the event is a fashion show for Bench clothing. The purpose of the event is to display clothing of Bench products. The interest of the sponsor is to promote their products. The purpose of the viewers is to see the set of clothing so they could select which one to buy (although some viewers just want to see popular celebrities in the show). The party whose interest is connected or proportionate to the purpose of the event is of course the organizers, which is why they could compel the attendees of the show to wear exclusively Bench products. The requirement of necessity entails that the measure adopted must be proportionate to the aim pursued.
In every event, somehow, there has to be some consideration incurred by the viewer. They have to buy a ticket and in so doing, there creates a sale. A sale is a type of contract and in every contract, it creates rights and obligation. A contract, as defined by Article 1305 of the New Civil Code, is a meeting of the minds between two persons whereby one bind himself, with respect to the other, to give something or to render some service. In buying the ticket, there has been a meeting of the minds between the organizer and the viewer, whereby the organizer bind itself to provide a show which the viewing public signed up for, thus creates a right for the audience to be part of the event. They cannot therefore be later on restricted to participate in the event simply because they are not using the sponsored brand for in buying the ticket, it does not oblige the viewers to buy and/or use the sponsored brand, unless the ticket provides otherwise. The sponsor may state such requirement though as a promotional campaign. The parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy (Article 1306 of NCC). But then you may further debate that the stipulation to compel the viewers to wear the sponsored brand is contrary to law having violated the constitutional right to freedom of expression. Then we go back to the issue being address here.
A trademark does not give its holder a monopoly on the word, phrase, shape or color as such. Only commercial use of the trademark for the relevant classes of goods and/or services can be restricted by the trademark holder. Non-commercial use cannot be prevented, except if that use affects the distinctiveness of the trademark. Thus, if the event is solely for commercial purposes, such as the Bench fashion show, the trademark holder has the prerogative to impose admission requirements.
There are some other types of sponsorship. One of which is academic sponsorship or simply put scholarship. For instance, Metrobank would sponsor your studies with the condition that you have to work for them after you graduate. Is that condition permissible? Would it not violate your freedom to choose where you want to work in the future? This agreement is in fact being practice here in the Philippines. This is allowed by law being a conditional obligation; the obligation arises upon the happening of the condition. In philosophy, we call this the benefit theory. Both parties in a contract must obtain a benefit from it.
But it’s different if the State was the one who provided the sponsorship. The scholars of University of the Philippines are not compelled to work for the school or for the government after their graduation. They are free to choose where they would like to work. I wonder where lies the distinction?? Is it because the State has inherent obligation to provide education for the less fortunate people and it is but proper to give them free education and having such obligation, the students has no duty on them to reciprocate?
HARMONY OF LAWS
Freedom of expression is not absolute. It has to give way too to other rights, such as the right of the trademark holders to protect its mark. It doesn’t mean that property right take precedence over the freedom of expression. The premise is that the manner of expressing such freedom must not offend another, must not be immoral; it must be decent, fair and reasonable. If the state has to guarantee freedom of expression for all, it is imperative that these freedoms be subjected to reasonable restrictions as per the acceptable norms of society and existing laws of the State. This is to ensure that the unbridled freedom is not misuse by unscrupulous elements to create social unrest or to negate the right of others to have privacy, decency and morality. Absolute freedom amounts to anarchy and therefore it is not advisable for any society that believes in rule of law and aspires for harmony.
External censorship is not desirable as that can stifle genuine expression of ideas. Therefore, we as a society must ensure that the need for external control is brought down to a minimum by exercising self discipline and being responsible for what we express. Just as much how we Filipinos find harmony during historic events, may we also learn to reconcile the diverse interest of each and one of us in all state of life.