Geographical Indications (GI): Tayabas Lambanog

Marketed as "Philippine Vodka", the VuQo brand lambanog has made it to Hollywood: http://www.abs-cbnnews.com/lifestyle/02/24/12/filipino-vodka-makes-it-oscar-gift-bags

Priced at $24 (about P1,032) a bottle in California, very few Filipinos will get to enjoy this beautifully assembled product in its final form. But in essence, we Filipinos of legal age all know this to be the Tagalog lambanog or more specifically, the Tayabas Lambanog.

Lambanog is a powerful liquor created from the fermented nectar of the coconut flower. This nectar is then distilled and collected as Lambanog. The final product is a clear white liquid containing around 20% to 40% alcohol (40 to 80 proof) and is drank on its own or mixed with tropical fruit juices like mango, calamansi, lime, orange or pineapple.

So how did this P200 per gallon power liquor turn into a luxury? Simple. Proper intellectual property management and marketing. 

First, the VuQo brand was developed and registered as a trademark. This allows the producer to have exclusive intellectual property rights over the brand and market it freely without the fear of counterfeits.

Second, the producer packaged the liquor with elegantly-designed, world-class frosted bottles. This adds class and mystique to an otherwise unromantic ordinary drink. The bottles themselves are protected by industrial design intellectual property rights. 

Third, the producer highlighted the Philippine origin of the liquor, making it exotic, unusual and exciting to the American market. The indication of origin itself may be used as a brand and helps improve the marketability of a product as authentic.

Finally, the story of how lambanog is made and the cultural rituals associated with the drink is spread to promote the authenticity and tradition attached to the drink. These traditional stories become part of the product and part of the experience. Traditional knowledge over the creation of the product, its history and rituals may be protected as intellectual property.

These strategies used helped transform this simple barrio drink into a young celebrity among the drinks of the world.

Back home, the Philippine government and private industries are working hard to set standardized practices for the production of lambanog. This way, we will be able to have the Tayabas Lambanog recognized as a Geographical Indication.

A Geographical Indication or GI is a collective brand like Champagne Wine (France), Praewa Silk (Thailand) or Idaho Potatoes (USA) that is commonly used by producers to certify the authenticity of their product. An internationally accepted GI will help products fetch a higher price in the global market because the producers are subjected to strict product standards that guarantee quality. 

We hope to establish the Lambanog GI, among other Philippine GIs, in the world market and have our brand stand proudly alongside the Scotch Whisky and the Stolichnaya Vodka.

So we work hard to make this dream happen... but since it's a Friday night, allow me to down my first glass of triple-distilled Tayabas Lambanog with a little calamansi juice. Tagay na!

Healing Hilot: Protecting Indigenous Massage Techniques

The Dagdagay Hilot is an ancient massage technique that was developed by the indigenous cultural communities (ICCs) of Mountain Province in the Philippines. Here, the masseuse uses uniquely shaped sticks to massage the soles of the feet in order to stimulate blood circulation. This technique is often paired with the use of virgin coconut oil and other herbs. It is believed to be effective therapy for hypertension, hormonal imbalance, depression and stress.

Today, many health spas and massage establishments employ this technique as part of their services. Cropping up alongside them are schools or training facilities that offer to teach these techniques and issue certificates for successful students. Much money changes hands in this industry, yet there has been no reported benefit to the communities of Mountain Province from which these techniques were copied. This is also true for all other indigenous hilot techniques and the communities from which they originate.

Under the Indigenous Peoples Rights Act (IPRA), ICCs have the right to exercise ownership over their health practices, among other things.[1]

The law reads: “they shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations…”

Unfortunately, this provision presently treated as a mere declaratory statement and it will continue to be one up until the National Commission on Indigenous Peoples (NCIP) shall have properly defined and operationalized these 'special measures'.

A different provision of the law offers more clarity by saying that Community Intellectual Rights (CIRs) may not be taken without ‘Free Prior and Informed Consent (FPIC)’ or ‘in violation of their laws, traditions and customs’.[2]

These rights may be used as a basis for community ownership over a health practice like massage techniques. This community property may then be the subject of a contract for the use of the technique and its name. Franchising this knowledge and brand could be a good and steady source of revenue for a community for as long as there is a properly executed contract, compliant with the dual requirements of FPIC and conformity with the community’s laws, traditions and customs.

Schools and training facilities must also be subject to the quality standards set by the community’s master practitioners. Certificates issued will no longer simply be a result of x number of hours spent in class but an authentic stamp of approval by the communities themselves of the proper application of the technique.

Trademark law can be used to support this business model by registering certification marks that may be used authenticate spas, health establishments or schools that wish to use the community’s brand. 

A “DAGDAGAY” certified establishment assures the public of the quality and authenticity of the service being offered while everybody else is prohibited from using the brand or mark. Any violator will then be liable for both trademark infringement and violation of the provisions of IPRA.

This combination of protective measures under IPRA and the Intellectual Property Code can help create a system that would give life to the ideals set by IPRA to protect the cultural integrity of our ICCs and to help them maintain control over and benefit from their knowledge, systems and practices.

Perhaps someday we can enjoy our massages with real peace of mind, knowing that our patronage is helping our indigenous peoples in a very real way.

---

[1] Sec. 34. Right to Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies. - ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts.

[2] Sec. 32. Community Intellectual Rights. - ICCs/IPs have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs. (emphasis supplied)

School-branded Money

Good education is good business.

Filipino Brands... Chilling

Filipino brands can be quite chilling... 

This one's for an ice cream stall in Market Market, Taguig City.

The Stylistic Mr. Lee

Clearly, our trademark system has failed.

This shop is in Taguig.

Jollibean

from www.jollibean.com

Yes, Singapore copies too.

I don't know the real story... whether Jollibee has ever tried to sue or whether they can even win this case.

This can certainly be an interesting debate about protecting well-known Filipino marks. 

If Jollibee can't be protected as THE well-known mark, then all others might as well be lost in overseas commerce.

Have a cup of Jollibean while you think about it...

from www.jollibean.com

Shangri-La Restaurant Lives

Shangri-La Restaurant in Times Street, Quezon City, Philippines

From the trademark-junkie favorite Shangri-La International v. Developers Group (G.R. 159931, March 31, 2006 and January 22, 2007) case. 

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Read the two Shangri-La cases in the Philippine Supreme Court here:

first case:

http://www.lawphil.net/judjuris/juri2006/mar2006/gr_159938_2006.html

second case:

http://www.lawphil.net/judjuris/juri2007/jan2007/gr_159938_2007.html

Diner Dash in the Flesh

Copyright & Trademark Infringement in One Strike

spotted along Bayani Road, Taguig City, Philippines

Philippine Jurisprudence: The Skechers Trademark Case (2011)

Skechers, USA, Inc. v. Inter-Pacific Industrial Trading Corp.

G.R. No. 164321 (2011)

Skechers, USA Inc. is the owner of the registered trademarks “Skechers” and “S within an oval logo”.

Skechers filed a criminal case for trademark infringement against several store-owners that were selling shoes branded as “Strong” and bearing a similar “S” logo. The Regional Trial Court (RTC)  issued search warrants, allowing the National Bureau of Investigation (NBI) to raid the stores and confiscate 6,000 pairs of shoes.

The accused moved to quash the warrants, saying that there was no confusing similarity between the “Skechers” and the “Strong” brands.

The RTC granted the motion to quash and ordered the NBI to return the seized goods. The court said that the two brands had glaring differences and that an ordinary prudent consumer would not mistake one for the other.

On certiorari, the Court of Appeals (CA) affirmed the RTC ruling.

The matter was elevated to the Supreme Court (SC).

Issue: Did the accused commit trademark infringement?

Yes, the accused is guilty of trademark infringement.

Under the IP Code (RA No. 8293), trademark infringement is committed when: 

Remedies; Infringement. — Any person who shall, without the consent of the owner of the registered mark:  

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or  

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material. (emphasis supplied)

There is trademark infringement when the second mark used is likely to cause confusion. There are two tests to determine this:

1. Dominancy Test – the court focuses on the similarity of the dominant features of the marks that might cause confusion in the mind of the consumer. Duplication or imitation is not necessary. Even accidental confusion may be cause for trademark infringement. More consideration is given to the aural and visual impressions created by the marks on the buyers and less weight is given to factors like price, quality, sales outlets and market segments.  

Applied to this case: The SC found that the use of the “S” symbol by Strong rubber shoes infringes on the registered Skechers trademark. It is the most dominant feature of the mark -- one that catches the buyer’s eye first. Even if the accused claims that there was a difference because the “S” used by Skechers is found inside an oval, the fact that the accused used the dominant “S” symbol already constitutes trademark infringement.  

The SC disagreed with the CA reasoning that the “S” symbol is already used for many things, including the Superman symbol. Even if this is true, the fact that Strong used same stylized “S” symbol as that of the Skechers brand makes this a case of trademark infringement. The same font and style was used in this case. The Superman “S” symbol is clearly different from the “S” in this case.  

2. Holistic or Totality Test – the court looks at the entirety of the marks as applied to the products, including the labels and packaging. You must not only look at the dominant features but all other features appearing on both marks.  

Applied to this case: Both RTC and CA used the Holistic Test to rule that there was no infringement. Both courts argued the following differences: 

• The mark “S” found in Strong Shoes is not enclosed in an “oval design.”

• The word “Strong” is conspicuously placed at the backside and insoles.

• The hang tags and labels attached to the shoes bears the word “Strong” for respondent and “Skechers U.S.A.” for private complainant;

• Strong shoes are modestly priced compared to the costs of Skechers Shoes.
 

Also using the Holistic Test, the SC corrected the lower courts and ruled that the striking similarities between the products outweigh the differences argued by the respondents:

• Same color scheme of blue, white and gray;

• Same wave-like pattern on the midsole and the outer sole;

• Same elongated designs at the side of the midsole near the heel;

• Same number of ridges on the outer soles (five at the back and six in front);

• Same location of the stylized “S” symbol;

• The words "Skechers Sport Trail" at the back of the Skechers shoes and "Strong Sport Trail" at the back of the Strong shoes, using the same font, color, size, direction and orientation;

• Same two grayish-white semi-transparent circles on top of the heel collars.

The features and overall design of the two products are so similar that there is a high likelihood of confusion. 

Two products do not need to be identical, they just need to be similar enough to confuse the ordinary buyer in order to constitute trademark infringement (Converse Rubber Corporation v. Jacinto Rubber & Plastic Co., 186 Phil. 85 [1980]). Also, the difference in price cannot be a defense in a case for trademark infringement (McDonald’s Corporation v. L.C. Big Mak Burger, Inc., 480 Phil. 402, 434 [2004]).

There are two types of confusion:

1. Product Confusion – where the ordinary prudent purchaser would be induced to purchase on product in the belief that he was buying another.
2. Source or Origin Confusion – although the goods are different, the use of the mark causes the consumer to assume that both products originate from the same source. 

Trademark law protects the owner not only from product confusion but also from source confusion. Protection is not limited to the same or similar products but extends to all cases where:

• The consumer is misled into thinking that the trademark owner extended his business into a new field;

• The consumer is misled into thinking that the trademark owner is in any way connected to the infringer’s activities; or 

• The infringement forestalls the normal potential expansion of the trademark owner’s business.

Trademark law does not only protect the owner’s reputation and goodwill, it also protects the consumers from fraud and confusion. 

In this case, it is clear that there was an attempt to copy the trademark owner’s mark and product design. In trademark infringement cases, you do not need to copy another's mark or product exactly. Colorable imitation is enough.

Fruit of our Land: Dreaming a Philippine GI System

Just last week, I was in Bangkok to attend a regional seminar called ASEAN-ECAP III Regional Workshop on the control of Geographical Indications (GIs). 


This seminar was designed to discuss the GIs of the different ASEAN and European countries. 


Before I go further, I am obliged to discuss the concept of GIs to the general public --


The TRIPS Agreement defines Geographical Indications (GIs) as 

...indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. 

(Trade-Related Aspects of Intellectual Property Rights under the General Agreement on Tariffs and Trades, § 3, art. 22.1.)

Simply put, GIs are marks or labels that tell you where a good or service comes from. In order to qualify as a GI product or service, it must come from that place and that place alone. This might be because of some special physical characteristic of that territory or it can be as simple as the reputation of the product itself or the people producing it.  

Image found at www.thewinedoctor.com

The most popular example would be the wine coming from the Champagne province of France. The grapes, soil, and climate from this particular region have certain unique qualities that allow the production of the high-quality Champagne wine as we know it. Because of its popularity, the term Champagne once became generic as a term to describe any type of white wine, but because of GI protection, no wine can bear the name Champagne except those that are produced from the Champagne Province. Others will have to be called sparkling wine.


The Philippines, along with all the other states that signed the TRIPS Agreement, is bound by international law to protect GIs as intellectual property. Under our system, GIs would be protected under the trademark system, although with substantial modifications.

Nakorchaishri Pomelo protected by the Thai GI System.

Regionally, GIs are starting to be protected and promoted across the ASEAN. Our visit to Thailand gave us a chance to visit the pomelo farms of the Nakorchaishri province, where the producers explained to us how these fruits are to be planted, tended and harvested in order to meet GI standards.

At a glance, it's clear that the Philippines has a wealth of local products that deserve GI recognition because of their quality and reputation. The mangoes of Cebu and Guimaras have been well received in Europe and the US for many years. The Barako coffee of Batangas is legendary among Filipino consumers. From these islands, we have so many food products, beverages crafts, and services that have the reputation and quality that could make potential GI-protected assets.

So what are the advantages of using GIs?

1. Quality Control and Consumer Protection. For products to qualify for GI protection, the producers have to follow standards and specifications. This may include the use of organic fertilizers, avoidance of pesticides and the respect for normal seasonal changes.
2. Price Increase. Because quality control increases, so does price. The consumer does not only buy the product but also the guarantee that the product is of good quality. This is true for both the domestic and the international market. In effect, this improves the reputation of a certain region or town, providing better jobs and opportunities locally. 
3. Market Access. Some countries, especially those of the European Union require very strict quality control measures for products entering their countries. Having GI protection helps in meeting these standards. Although it is not an assurance of market access, GI-protection effectively guides producers into the right direction of producing quality products rather than mediocre ones that would be rejected outright.
4. Promotion. Because the GI system is well-known in the global market, having your product qualify as a GI-protected product instantly includes it in the marketing scheme of GIs globally. 

All in all, it is predicted that this system has the potential to supply tremendous benefits to local producers by bolstering the marketability and quality of their goods. It can also protect these producers by providing them with a niche market that can withstand competition from large companies that attempt to invade the industry. This secures both the identity of their products and the commercial success of their enterprises.

So why haven't we established a GI system yet?

Because we are caught between adapting the sui generis system of EU & ASEAN and the certification/collective mark system used by the United States. It's a battle of IP systems that mirror our own history and foreign policy. Adapting the EU system would give us better market access to the old world, while inviting the ire of our largest trading partner. Using the US system will isolate us from the rest of our ASEAN neighbors and prevent regional harmonization of IP laws and the integration of markets.

Difficult choice. But we need to make it soon. Our neighbors are waiting.

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More on Collective and Certification Marks on my next post.