INFRINGEMENTS vs. UNFAIR COMPETITION

Related article: How to Spot Copyright Infringement

Under Republic Act No. 8293 or otherwise known as “Intellectual Property Code of the Philippines”, there are three possible infringements. They are copyright infringement, trademark infringement, or patent infringement. On the other hand, Republic Act No. 166 deals with unfair competition. Let us know the difference of the four (Copyright infringement, trademark infringement, patent infringement and unfair competition).

What is copyright?

Copyright may be defined as a form of intellectual property which protects the rights of authors and creators of literary and artistic, or derivative works (“Works henceforth”).  The law accords Economic and Moral Rights to the authors or creators of the Works.

• Literary and Artistic works are original intellectual creations in the literary and artistic domain.
• Derivative works are defined as new work provided that they do not violate any subsisting copyright upon the original work employed or any part thereof.
• Works are protected from the moment of their creation, irrespective of their mode or form of expression.

• Economic Rights, as conferred under Section 177 of RA 8293, consists of the exclusive right of the author or creator to carry out, authorize or prevent the following acts:
  • Reproduction of the Works or substantial portion of the Works;
  • Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the Works;
  • The first public distribution of the original and each copy of the Works by sale or other forms of transfer of ownership;
  • Rental of the original or a copy of an audio-visual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;
  • Public display of the original or a copy of the Works;
  • Public performance of the Works; and
  • Other communication to the public of the Works

• Moral Rights, as conferred under Section 193 of RA 8293 and independent of the above Economic Rights, are the following:
  • To require that the authorship of the works be attributed to him;
  • To make any alterations of his work prior to, or withhold it from publication;
  • To object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work;
  • To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.

In simpler terms, Copyright is a law that gives the owner of the Works the right to say how other people can use it. The owner of the Works must have consented or authorized the other people before the latter can use or reproduce the same. Otherwise, such unauthorized use may constitute copyright infringement which is punishable under the law.

What is Copyright Infringement?

In the case of Mircrosoft vs. Manansala et. al (G.R. No. 166391, OCTOBER 21, 2015), to wit:

“Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.”

It is the use Works protected by copyright law without the authorization or consent of the copyright holder, thereby infringing certain his exclusive Economic and Moral rights.

Copyright infringement occurs when:

• There is a violation of any of the exclusive economic or moral rights granted to the copyright owner;
• It may also consist in aiding or abetting such infringement;
•  RA 8293 also provides for the liability of a person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the following purposes:
  • selling or letting for hire, or by way of trade offering or exposing for sale or hire, the article;
  • distributing the article for the purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or
  • trade exhibit of the article in public.

What is Trademark?

• RA 8293 defines a Trademark as any visible signs capable of distinguishing the goods of an enterprise which includes a stamped or marked container of goods. Trademark is acquired through registration made validly in accordance with the provisions of law.

What is trademark infringement?

It refers to the unauthorized use in commerce of a registered trademark or a copy or colorable imitation thereof, which results in the likelihood of confusion among the consuming public.

The elements of trademark infringement are:

1. It must be registered in the Philippines
2. Plaintiff’s ownership of said mark, and
3. Use of the trademark or imitation thereof by a third person, which results in likelihood of confusion.

What is Patent?

• It is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years.

• In the case of E.I Dupont De Nemours & Co., vs. Director Emma C. Francisco et. al (G.R. No. 174379, August 31, 2016), to wit:

“A patent is granted to provide rights and protection to the inventor after an invention is disclosed to the public. It also seeks to restrain and prevent unauthorized persons from unjustly profiting from a protected invention.”

            What are patentable inventions?

• Section 21 of RA 8293 provides that any technical solution of any problem in any field of human activity which is new, involves inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process, or an improvement of an of the foregoing.

            What is patent infringement?

• It is the making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee.

What is unfair competition?

From Jurisprudence, Unfair Competition has been defined as the passing off or attempting to pass off upon the public goods or business of one person as the goods or business of another with the end and probable effect of deceiving the public.

1. Confusing similarity in the appearance of the goods involved, and
2. Intent to deceive the public and defraud a competitor.

Without limiting the scope of unfair competition, Sec. 29 of RA 166 provides that the following shall be deemed guilty of unfair competition:

1. Any person, who in selling his goods shall give them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose;
2. Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public;
3. Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.

The elements of unfair competition are:

1. the offender gives his goods the general appearance of the goods of another manufacturer or dealer;
2. the general appearance is shown in the:
   • goods themselves, or in the
   • wrapping of their packages, or in the
   • device or words therein, or in
   • any other feature of their appearance;
3. the offender offers to sell or sells those goods or gives other persons a chance or opportunity to do the same with a like purpose; and
4. there is actual intent to deceive the public or defraud a competitor. (emphasis ours)

• Please note that “intent to deceive” is what separates unfair competition from the rest of the infringements.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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