The use of competing marks in a corporate sponsored event
(from the standpoint of participant/people)
“Of all the things you wear, your expression is the most important.” – Janet Lane
Generally, laws are created to safeguard the interest of a person, certain sectors of society, or the society as a whole. Thus, conflicting interests between affected parties are inevitable. Issues in relation to the “use of competing marks in a sponsored corporate event” definitely amplify the argument on questions regarding superiority of rights and protection of rights. Both interests of the sponsors and the public must be weighed in view of protecting the property rights of the sponsors and the constitutional right of freedom of expression of the participant.
Branding is commonly used by entrepreneurs to build the reputation of the company’s products or services. It creates an idea or an image to its consumers through the use of names, logos, shapes, colors and even abstract designs. Branding allows the company to create an impression to its target market. It is one of the effective means in the promotion of trademarks. On the other hand, under the Intellectual Property Code of the Philippines, mark means any visible sign capable of distinguishing the goods or services of an enterprise and shall include a stamped or marked container of goods.
Moreover, the Intellectual Property Code of the Philippines deals with the creation of property rights such as patents, trademarks and copyrights. It also endeavors to safeguard the interest of the owners of trademarks and other intellectual property rights against any infringement and unfair competition.
Advertising is the paramount method to communicate and reach out to the customers. Wide-ranging activities of advertisements include printed advertisements, online advertisements and even hosting of social events sponsored by the company promoting a brand. It seeks to create an identity in the open market and persuade consumers to patronize their products. The main objective of the sponsors of the event is to create awareness and educate the participants regarding the product and services of the company through the use of their trademarks and/or brands. Advertisement does not only apply for commercial purposes but it is also use in promoting social awareness and disseminating information regarding issues on politics, economics and even religious beliefs.
The dispute arises when the sponsor of the event or the organizer prohibits the use of competing marks in their event. The restraint on the use of competing marks seeks to prohibit a guaranteed right under the Constitution –a limitation to an individual of his freedom to express. A restriction to use apparel or any material containing a brand of a non-sponsor is a violation of the right to freedom of expression. A person prohibited to use the brands of his own choice constitutes intrusion to the constitutional right. As the saying goes, “you are judge by the way you dress up.”
A Constitutional Right
Article III Section 4 of the1987 Constitution guarantees the right of people to freedom of expression. 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.” This right allows a person to convey his thoughts and to some extent makes a standpoint on any issues concerning political, economic or even personal issues. It gives them the leeway to participate, as a member of the society, in matters involving public interests. Modes of expression may be oral or written language, symbolism or any other form that expresses an opinion, communicate information or convey any grievances. Expression is a broad term which relates not only to verbal utterances or statements but may include those relates to the color, sound, emotions and senses. This right serves as an outlet of an individual to freely demonstrate his ideas on matters concerning public interests. It covers the expressions that are acceptable to the majority and even the unconventional view. The Constitution protects this right with the purpose of allowing free and open exchange of ideas related not only to political matters but all issues involving public interests.
Along with the right to freedom of expression are a myriad of responsibilities expected to be practice and uphold by an individual. Expressions must not be against public morals or those statements which are detrimental to the public interest. Freedom of expression is in the public interests that people may openly convey their thoughts and opinions in order to encourage exchange of views for the development of a democratic society. Democracy is a government by the will of the people and the development and growth of a person is beneficial to the society. Through the right to freedom of expression, the majority, if not all, may speak their minds and communicate information that may be helpful to them as an individual and as a member of the society.
In the case of PBM Organization vs. PBM Inc., it was recognized under the Doctrine of Preferred Freedom the supremacy of the right of free expression over property rights. It was ruled that “in the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority “gives these liberties the sanctity and the sanction not permitting dubious intrusions.” Thus, in considering the mentioned Doctrine of Preferred Freedom, it can be shown that priority of right is given to the right of free expression as the law recognizes under the Bill of Rights the importance of freedom of expression in a democratic society. Property and property rights of the adverse party, in this case the event organizer or sponsor, which seeks to be protected, is an inferior right over the rights of free expression. Primarily, the law seeks to protect the interest of its people because although property and property rights can be lost thru prescription, human rights are imprescriptible.
The protection accorded by law to the right of expression is due to the possibility of abuse in imposing of limitations. Thus, without proper qualification on its limitation may be detrimental to the interest of the public. And although it can be argued that exposure of other brands may prejudice the interest of the company or the sponsor, it cannot be protected at the expense of the constitutional right of free expression of an individual especially if there is no express limitation provided by law disallowing the use of non-sponsor brand at a corporate event.
Of course like any other rights, the right to free expression is not absolute. The law requires criteria when a right may be validly restricted. The mere fact that it is a guaranteed right under the Bill of Rights of the 1987 Constitution means that it must be protected and may not be unwarranted. There must be a clear and convincing proof of necessity to limit their rights. Even the government cannot, at an instance, limit this right. Cases decided by the Supreme Court formulated tests to validly identify a reasonable limitation. Under the clear and present danger rule requires the existence of imminent danger of substantive evil before right to free expression can be restricted. Other tests such as dangerous tendency rule and balance of interest test also require existence dangerous tendency of evil and regulation of interest of public order respectively. If jurisprudence under our local forum seeks to impose such criteria before a restraint on the right to free expression can be validly justified by the government, burden of proof on necessity is further expected on the part of private parties restricting a person of his constitutional right.
Also, Article XVI Section 11 of the 1987 Constitution recognizes the need to prohibit and regulate monopolies in commercial mass media when the public interest so requires. It further states that the advertising industry is impressed with public interest and thus, shall be regulated by law for the protection of the consumers and the promotion of general welfare. Advertising is a free speech and a mode of expressing thoughts. A restraint of free speech with the sole purpose of refraining an exhibition or display of the use of competing marks in a sponsored event is definitely a contrast to the intent of the law to promote free trade and competition and avoid monopolies for that matter.
From the International Perspective
Although foreign jurisprudence is not per se legally binding in our local forum, our laws and jurisprudence are somehow influenced by the rules and principles recognized by their courts, especially on matters concerning the basic human rights of an individual. The American jurisprudence in the case of Abrams v United States ruled that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the … that truth is the only ground upon which their wishes safely can be carried out. In a democratic society like the Philippines, the perspectives and/or ideas of its people are given due credit because the will of the people is of utmost significance in good governance.
The European Court of Human Rights has stated: “Freedom of expression is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.” Therefore, any restraint to freely exercise the right of expression must be formulated in a way to validly justify the necessity of such limitation. It cannot be plainly argued that the interference aims to protect the interest of any business industry for their benefit and gain. Restrictions must be a necessity not just a mere caprice.
The International Court also formulated criteria for a valid interference with the right to freedom of expression. It acknowledges that a valid interference must be provided by law; pursue a legitimate purpose as enumerated under Article 19(3) of the ICCPR and necessary to achieve that purpose. Clearly, a prohibition must be dictated by law before the intrusion can be appropriate. Although the right to freedom of expression is not absolute, the said international law lays down criteria for a valid restriction on Freedom expression. It includes that of which provided by law and are necessary for respect to the rights or reputations of others and for the protection of national security, public health, morals and the general welfare of the public.
The significance of freedom of expression is also expressly guaranteed under the Universal Declaration on Human Rights. Article 19 of the said Declaration states that “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless frontiers.” Although it seems to absolutely grant the right to freedom of expression, we still need to ascertain the limits on the conflicting interest in the exercise of the rights between trademark owners and event sponsors and against the basic human right of expression under the balanced of interest approach.
Marketing and Monopoly
Generally, marketing aims to introduce and/or promote to the market a particular product or brand of a particular product. Moreover, ambush marketing has been defined as a marketing strategy which occurs through an unauthorized association with the event or use of the event’s trademark by non-sponsors. Most of the time, it was demonstrated through wearing clothing with a mark, symbol or even color connected to a certain brand or any design that has a resemblance on a particular brand.
Although ambush marketing may be argued as a defense or allegation by an event organizer or a sponsor of an event, clearly it can be argued that, as defined, ambush marketing does not necessarily falls under any violation of trademark infringement and unfair competition as enumerated under the Intellectual Property Code of the Philippines. Trademark infringement constitutes an act where an alleged infringer uses a mark closely similar to an existing mark in order to deceive or confuse the public. Moreover, in the case of Alhambra Cigar and Cigarette Manufacturing Co. v. Mojica, unfair competition is defined as the passing off or attempting to pass off upon the public the goods/business of one person as for the goods/business of another. Clearly, ambush marketing does not fall within the two violations of the trademark under our laws. Mere exhibition or display of clothing containing a particular brand to an event does not constitute an illegal act that warrants prohibition of any form.
Thus, a restriction to the public or an individual on his right to wear any clothing of his preference as one mode of expressing himself is a way too much to require. It is a guaranteed right that any limitation must be supported by law that requires it and not only because any sector of the society wishes to prohibit it for their own interest.
On another point, the granting of trademark/marks does not, by itself, allow monopoly and corporate capitalism. Monopoly is defined as a control obtained by one supplier over the commercial market within a given region or place. The law recognizes open competition of industries in an open market. The monopoly given to trademark owners to use their own trademarks for their benefit does not extend to the control of exposure of other marks for their benefit especially if it coincides with a constitutional right of an individual. As provided under the Constitution, monopolies are not encouraged and therefore must be prohibited if needed when the public interest so requires. Free trade and open competition in the market will provide for better opportunities to individuals and allow the development of the society through the increase of economic growth of the country.
Conclusion of the Matter
In any matter, there are always two conflicting sides of the story. Both parties have rights that must be protected to a certain extent. Balanced of interest must always be considered in weighing the effects of any circumstances.
Indeed, sponsors’ right and interest must be protected but such protection must not prejudice the guaranteed right of the public. Right to Freedom of expression may include any act of a person which conveys his thoughts and tends to represent their perspectives. What you wear, at a certain point, defines who you are and expresses the person you want to be. It is broad enough to include the right of a person to freely choose what clothing to wear or what design or brand of attire to display.
It is the fundamental law of the land which guarantees the right to freedom of expression and therefore, it is only justified to require that any limitation to such right must provide a clear and convincing justification before it can be limited. The adverse party must be burdened to prove, if any, what the law mandates prohibiting such right. In as much as the law would want to protect all the parties affected, certain rights are superior to another. A conflict between a constitutional right and a property right will generally favor the former than the latter. Civil rights are timeless. It exists for the people –a basic human right.
Suffice it is to say, the law provides for a reasonable protection for all parties involved –the sponsors and the public. Protection of a party must not be at the expense of the other party. Prejudicial interest and necessity of the restriction must be reasonably established. Although our law promotes protection of trademarks or marks against infringement and unfair competition, the law is clear on the matter that competing marks in a sponsored corporate event is not within the bounds as defined by the law and therefore not covered by such protection. It was never the intention of the law to provide protection at the expense of another party. A constitutional right cannot be infringed on the ground of protecting a property right. Restriction to a constitutional right may be validly recognized if expressly provided by law, reasonable, and serves to protect a better legal purpose or aim.
Moreover, it must be noted that the creation and grant of intellectual property right, especially trademarks, does not give the trademark owners the monopoly in advertising. As provided by law, advertising is of public interests and therefore, monopoly is prohibited. Between open trade competition and monopoly, the law favors the former.
Freedom of expression, as a basic and constitutional right, is of paramount significance and indispensable in the development of a democratic society. Democracy is impossible to achieve if members of the society cannot openly convey their thoughts, opinions or information to the public. This limitation will result to the failure of the government to function in accordance to the will of the people. Democracy equates freedom of expression.