Friday, August 30, 2013

Whether the wearing of shirts with the trademark of Companies which are not sponsoring the event is unjust or should be prohibited during events

Whether the wearing of shirts with the trademark of Companies which are not sponsoring the event is unjust or should be prohibited during events that are sponsored by specific Companies.
Various events happen every day. These events could be a nationwide celebration of our culture, history and customes. This could even be politically driven events like the million march in Luneta recently. Wherein, thousand of Filipinos of all ages walked and marched protesting the abolition of the Congress PDAF.
It could also be an event for the labor, profit and non-profit organizations and sports. In the field of sports, the Country hosted the Asian FIBA cup for almost two weeks during the month of August 2013. Wherein we witnessed a remarkable performance by our Philippine Team – Gilas who ended up second and qualified for the upcoming World Fiba Cup.
However, during these events, were there campaigns or advetisements made by companies to promote their businesses or products? Yes, definitely. These events are like haven of opportunities of big and small companies. Sometimes these companies can even enjoy free publicity during these events.
Perhaps, a noticeable example would be the advertisement shown on the sides or on the floor of the basketball court where printed logos of certain companies were printed such as Tissot and Molten. As to free advertisement, it would be the clothes worn by famous celebrities present during the event and are occasionally focused on television.
A good example would be, the brand of the polo shirt of our own Vice President Jejomar Binay. The Vice President was seen wearing a lacoste orange shirt and was focused on the television twice or thrice during the game. Some may have noticed this and some may have not. But nevertheless, millions of Filipinos watched the game thus five percent of a million would be 50,000 Filipinos, still it was a free advertisement.
The huge question would be when would the wearing of shirts with the trademark of Companies which are not sponsoring the event become unjust or should be prohibited? My stand would be in better shown by answering and defining the situation.
In order to properly guide us on how to understand the situation, it would be best to define first the terms involved. Specifically on the scenario give what is involved are the terms trademark, service marks, trade name and advertisement.
In the Intellectual Property Code, the terms trademark and service marks are mentioned under the term “Marks” which was defined as 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. Trade name means the name or designation identifying or distinguishing an enterprise; (Sec. 38, R.A. No. 166a)
Whereas, under the Consumer Act advertisement was defined as a means the prepared and through any form of mass medium, subsequently applied, disseminated or circulated advertising matter.
I read one quote that defines advertisement:Advertising ministers to the spiritual side of trade. It is great power that has been entrusted to your keeping which charges you with the high responsibility of inspiring and ennobling the commercial world. It is all part of the greater work of the regeneration and redemption of mankind - Calvin Coolidge

The issue really would be the following:
·         When will the wearing of shirts with trade names, trademarks, logos or service marks becomes tantamount to advertisement?
·         Is there a required number of persons wearing the shirt?
·         Whether there be specific events, places and personalities to qualify to a prohibited act
·         Whether, the restriction is against freedom of speech
·         How will the said prohibition be implemented?
The first issue actually is the hardest issue to determine. When, could be a matter of discretion or when could be dependent on any prior agreements or regulations made or entered into before the happening of the event. To elaborate an example would be very helpful.
As to when as a matter of discretion, imagine in the same scenario, a battalion of men went to see the basketball game wearing the red shirts with the trademark of Jollibee. The big face of Jollibee in the middle of the shirt. These men brought with them drums to make some noise, enough to get the attention of the camera man. And yes, during the game, they were able to get the attention of the camera man and was shown on television for 5secs.
Well, according to Time, commercials may cost $3.5 million per spot during popular sports event in the US. Thus, that 5secs may be classified as free advertisement. A matter of discretion, would definitely apply into this scenario. As the organizers of the event would have sufficient basis as to the unfair actions of the company, who may have deliberately used men who are basketball enthusiast as means to benefit there business.
As to when as dependent on any prior agreements and regulations made or entered into before the happening of event. Based on the last example, big events like this would have had prepared measures in order to prevent unjust situations as what I mentioned in the preceding paragraph.
These measures may be taken legitimately to protect the interests of companies that made the event possible and shell out their funds to make event a success. This is the situation, where the implementation of possible prohibition of wearing shirts with the trademark of Companies which are not sponsoring the event is just.
However, is there a required number of persons to qualify it as unjust or one celebrity caught or seen wearing that distinguish shirt is enough to justify the prohibition? If we qualify this prohibition on the first option, this will eliminate the subjective part of it.
To emphasize, let’s say only five men went to the game wearing the same shirt and was not able to get attention, it will be difficult to determine whether there was a violation. Or rather, one celebrity who was not shown on the television watching the game. Here, both on these occasions the application of the law would become uncertain.
The next consideration would be, what kind of events should be sanctioned? Whether there be specific events and places to apply the said prohibition or regulation.
As would this apply to events wherein nationality and history is being celebrated or would it only cover events in common and regular events or events in pursuance to business growth? This should be defined as this is crucial in determining whether the right of the citizen on freedom of speech is violated or not.
Sec 4 of the Art III of the 1987 Constitution says:
Section 4. 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 section actually may or may not be applicable on the situation as this protects the citizenry against the Government and not against private corporations or companies. The wearing of the wearing of shirts with the trademark of Companies which are not sponsoring the event is not against the Government but against the sponsoring Companies, yet at some point the Government would be affected as these Companies would somehow get things free and no taxes would be paid because there were no transaction made.
However, what is relevant on the issue would be Sec 1 of Art XII of the Constitution:
Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the under-privileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.
In this section, the Government recognizes, the equitable distribution of opportunities, income, and wealth. It regulates as to not to unjustly enrich a limited number of person but to disseminate the wealth and income of the Nation.
It also mentioned, that in the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Thus, it is clear that the supreme law of the land recognizes the importance of economic growth.
In this section, we find reason why we need to regulate free advertisements enjoyed by some Companies to the disadvantage of Companies who are paying the right price and are in good faith contributing to the economy of the Nation.
Yes, I agree at some point as to regulate the wearing of shirts with the trademark of Companies which are not sponsoring the event. But this would include reasonable regulations, and application of the law must be determined with certainty.
This is a question of how to implement such law or regulation, and not a question of whether this is unjust or not. Because, clearly if the act would not be sanctioned a reasonable man would say that in some instances this actually eliminates fairness in the field of business and trade.
The implementation would be the difficult phase. As this would define when to apply the law and the quality of its application.
To further elaborate, let’s illustrate the implementation into possible scenarios. Various award giving bodies are organized to recognize the achievements of artists. Let’s say the artist wore a simple shirt with the trademark of “FILA” on its side, normally when the artist wins an award he will be invited for some informal interviews after the event, this would include giant networks such as ABS-CBN and GMA. On the said event since a number of networks would run after the artists and beg for interviews then it could happen that they have been interviewing the artist live on television without even noticing that they artist have made free advertisement.
As this artist is being idolized by bunch of single ladies of all ages, men would opt to look like him in pursuit to get as much women as this artist gets. Thus, being seen on television wearing FILA, these men would similarly wear such shirts. This, clearly illustrates the act the should be sanctioned as it unjustly enrich one Company without paying the right amount of advertisement charges that the network could have earned and in return would been part of the income of the network and a per centum of it would been paid to the Government as tax.
However, would this happen to the fans who were present during the event. Shouting at their most and cheering for their favorite artist? This I think would be the ambiguous part of the law as it will become very difficult to determine whether they have unjustly enriched the non-sponsoring Companies.
Yet, with the development of advance Technology, giant networks would have options as to eliminate or lessen such damage against their income and protect their business. It would be a possibility that these networks may cover the trademark of the shirt or plan ahead as to avoid this scenario.
However, what about those that are not televised, still there could be unjust enrichment. As mentioned above, Companies may opt to plan ahead and enter into agreements with the event organizers to ensure that their ads be prioritized and avoid free and undue advertisements.
Contracts and agreements would answer majority of the concerns, however, to do it in the individual level, this is impossible. Yes, contracts and agreement would answer some of the problems but this is not enough.
A law that prohibits the act coupled with proper implementation, would still be the answer. Yet, proper study as to how it will be implemented is my recommendation. As this is will answer the ambiguity attached to the scenario.
 Riza Villalobos

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