Trademark
& Sponsorship vis-à-vis Sports Event
and Rights & Freedom of Expression
II. Background
III. Discussion of the Issues
1. Whether or not one’s right and freedom of expression are violated when one is denied entry to an sports event where the major sponsor of the said event prohibits the wearing of shirts and the likes showing the trademark or trade name of sponsor’s direct competitor in the same industry where they belong?
2. Whether or not a major sponsor of an sports event could validly stipulate in their contract or agreement with the event organizer to prohibit the display in any form of the trademark or trade name of their competitors?
3.
Whether or not the exlusivity clause of an sponsor to an event tantamount to
prior restraint of one’s right or freedom of expression?
IV.
Relevant Jurisprudence
Jurisprudence has evolved three (3) tests:
1. The Dangerous Tendency Test;2. The Clear and Present Danger Test;
3. The Balancing of Interest Test.
V. Conclusion
I. INTRODUCTION
Everyone
is beaming with pride, excitement and anticipation for a big and highly media-hyped
sports event that is about to unfold in the entire history of the Philippines...
Fast forward, the big event has come and it is now the big day that everyone
has been longing and eager to see right before their naked eyes. Huge banners,
streamers, billboards, signs, and other forms of media advertisements for a
well-known and a major sponsor company is almost every corner of the area where
the event is taking place. It is as if short
of expressly saying that they own the event. Prior to the big day, a
non-sponsor company gave you and your friends tickets to the said event with a
condition that you and your friends have to wear shirts showing their company trademark
or trade name which is in direct competition with that of the major sponsor of
the event…
Now,
you together with your friends are about to enter the venue but was suddenly denied entry because you and
your friends were wearing shirtss
showing among others, the trademark or trade name of a competitor company of the
major sponsor of the event. You and your friends were deprived to watch the big
event you have been longing to see and be part of the history that is about to
unfold and be part of its success because you certainly believed that the event
was for the common people like you and its success should be attributed to the
common people like you. You now wonder
what the heck such trademark or trade name got to do to deprive you of your
right and freedom to see such big event, to express yourself and be free to
support whoever you think deserved your support? You may also wonder whether or
not your act is contrary to laws, morals, good customs, public order, or public
policy that would merit the deprivation of your right and freedom of expresson?
Was that prohibition tantamount to prior restraint which is violative of your
rights and freedom of expression? What recourse do have if any to go after
those who have violated your right and freedom of expression as guaranteed by
no less than the supreme law of the land, the 1987 Philippine Constitution?
However,
since freedom of expression ranks in the hierarchy of constitutional rights
higher than property, the norms for the regulation of expression place more
stringent limits on state action as well as by certain juridical person or
natural person. Nevertheless, was that
enough reason for that sponsor company to deny
you and your friends of your rights and freedom of expression?
II. BACKGROUND
The
following are provided to give readers an overview or insight on some legal
basis as well as some important terms that will be utilized in the d. Further,
the same has been provided to facilitate one’s understanding of the matters to
be discussed in proceeding sections:
Republic
Act No. 8293 or otherwise known as the Intellectual Property Code of the Philippines
RA
8293 Section 121 defines that “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 the goods while “Trade Name” means the name or designation
identifying or distinguishing an enterprise. It is noteworthy to discuss here
that certain marks are non-registerable as provided for by Section 123 of RA
8293 when such marks are immoral, deceptive or scandalous; flag or coat of arms
or insignia of any country or any of its subdivision; name, portrait or
signature of any living thing except with consent, identical with an earlier
registered mark on same goods or services, closely related goods or services or
resembles a mark to deceive or cause confusion, generic terms of goods or
services, characteristics of goods, customary everyda sings and color.
Section
4 of Article III – Bill of Rights of the 1987 Philippine Constitution provides
that no law shall be passed abridging th freedom of speech, of expression, or
of the press, or the right of the people peacebly to assembly and petition the
government for redress of grievances.
What
do “speech” , “expression” and “press” include? According to father Bernas,
speech, expression and press include every form of expression, whether oral,
written, tape or disc recorded. It also
includes movies as well as what is referred to as symbolic speech such as
wearing of arm band as as symbol of protest.
Peaceful picketing has also been included within the meaning of speech[ii].
Section
1 of Article II of the 1987 Philippine Constitution provides that the Philippines
It
is noteworthy to define what is meant by the word ‘people”? Father Bernas defines people as an element of
a state, “people” simply means a community of persons sufficient in number and
capable of maitaining the continued existence of the community and held together
by a common bond of law. It is of no legal consequence if they possess diverse
racial, cultural, or economic interest[iii].
Article
1306 of the New Civil Code provides that contracting parties may establish such
stipulation, clauses, terms and conditions as they may deem convenient,
provided they are not contrary to laws, morals, good customs, public order, or
public policy[iv]
It
also noteworthy to define what a contract is ? As defined in Article 1305 of
the New Civil Code, a contract is a meeting of minds between two persons
whereby one binds himself, with respect to the
other, to give something or to render some service.
III. DISCUSSION OF THE ISSUES
Now, let us
discuss the issues.
1. Whether or
not one’s right and freedom of
expression are violated when one is denied entry to an sports event where the
major sponsor of the said event prohibits the wearing of shirts and the likes
showing the trademark or trade name of
sponsor’s direct competitor in
the same industry where they belong?
What then is the relevance of this provision in the issue at
hand? Well, a cursor reading of the
provision cleary provides that freedom of expression as guaranteed by the
supreme law of the land includes the any form of expression, oral or written,
taped or disc recorded. In this particular case, the trademark or trade name displayed in
one’s particular shirt is tantamount to a written expression as this form is
cleary visible by the naked eye. As
such, it is in meaning of expression contemplated by the law. What is being expressed here is not contrary
to laws, morals, ood cusoms, public order or public policy but was considered
by the event sponsor as contrary to their policy, rules and regulations because
they hold certain degree of ownership in the particular event. But was this
legally valid? To my mind, this is illegal for the simple reason that it is
violative of one’s constitutiional right.
There is no law that prohibits such expression. The sports sponsor may
validly regulates the conduct and related issues of the event but not to
prohibit certain act to the extent of denying entry because of the mere reason
that what was shown in one’s shirt is not the trademark or trade name of their
company but of its competitors. Assuming arguendo that an agreeent or contract
was reached by the sponsor company and the event organizer to prohibit people
from wearing shirts or any form displaying their competitors’ trademark or
trade name, such agreement or contract is not valid because Article 1306 of the
New Civil Code provides that contracting parties may establish such
stipulation, clauses, terms and conditions as they may deem convenient,
provided they are not contrary to laws, morals, good customs, public order, or
public policy[v].
2. Whether or not a major sponsor of an sports event could validly stipulate in their contract or agreement with the event organizer to prohibit the display in any form of the trademark or trade name of their competitors?
First,
let us define contract. As defined in Article 1305 of the New Civil Code, a
contract is a meeting of minds between two persons whereby one binds himself,
with respect to the other, to give
something or to render some service. Assuming arguendo that the two parties
reached an agreement and that was put into writing wherein a certain provision
in the contract between them (the major
sponsor and the event organizer) prohibits third party (the people) to wear shirts or any form
displaying trademark or trade name of the sponsor’s competitors in the event,
such provision in the contract or agreement is only binding upon the two
parties concerned. The third party (the
people) not privy to the contract is
not bound to such contract. As such,
those wearing shirts displaying the trademark or trade name of the sponsor’s
competitor did not violate any law. On the contrary, what has been violated
were the people’s rights and freedom of expression as guaranteed by the 1987
Philippine Constitutions (Section 4
Article III- Bill of Rights).
To
my mind, what has been done by those wearing shirts showing the trademark or
trade name other than that of the sponsor’s is not contrary to law, morals,
good customs, public order, or public policy that would merit denial of their
right and freedom of expression by the sponsor company. It is a blatant disregard to their innate
rights.
However,
the sponsor company and the event organizer may validly regulate or prohibit
certain conduct on the event itself to ensure peace and order but not to the
extent of denial of entry on the ground that one is wearing something that
shows or displays a competitor’s trademark or trade name.
In
addition, certain cases and jurisprudence particularly on the dangerous
tendency test, the clear and present danger test and the balancing of interest
test which sets the norms for the regulation of expression shall be discussed
in detailed in section IV of this article.
3. Whether or not the exlusivity clause of an sponsor to an
event tantamount to prior restraint of one’s right or freedom of expression?
Yes. Akin to prior restraint of one’s free speech is prior
restraint to one’s right or freedom of expression. The first prohibition of the constitutional
provision is prohibition of prior restraint.
Prior restraint means official government restriction on the press or
other forms of expression in advance of actual publication or dissemination[vi].
If the state is prohibited by our Constitution to impose
prior restraint to free speech and press, how much more to a juridical entity
or natural person especially so that there is no legal basis to speak about
where such juridical person or natural person is anchoring in its imposition of
prior restraint. However, as enunciated
in the case Near vs Minnesota ,
283 U.S.
It is noteworthy to note however that advertisement of goods
or of services in an example of commercial speech as discussed by Father Bernas
in his book the 1987 Philippine
Constitution A Reviewer-Primer.
Accordingly, trademark or trand name as defined by RA
8293 Section 121 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 the goods while “Trade Name” means the name or
designation identifying or distinguishing an enterprise can be likened to
commercial speech or a form of communication which “no more than proposes a
commercial transaction”.
Otherwise stated, a trademark or trade name is indeed an advertisement of goods or
services which can also be curtailed by the Government not by certain juridical
person or natural person. Such
commercial speech, tradeamark and trade name enjoy certain protection from the
state as provided for in the declaration of state policy in the case of
trademark, trade name and other form of intellectual property. In addition to
this certain provision of the law, jurisprudence states that in order to enjoy
such protection, such form of advertisement must not be false or misleading [Friedman v. Rogers ,
440 U.S. 1 (1979)][viii] and should not
propose an illegal transaction [Pittsburgh
Press Co. v. Human Relations Commission, 413 U.S.
The State’s
action on the regulation of expression in any form can be used as basis for the
limitation on actions to be taken by a juridical person or natural person. As such, the author is of
the opinion that it is just and
proper to discuss here the relevant jurisprudence on state’s action vis-à-vis
the freedom of expression or speech.
Since the
freedom of expression in the hierarchy of constitutional rights higher than
property, Salonga v. Pano, 134 SCRA 438
(February 18, 198), the norms for the regulation of expression place more
stringent limits on the state action. Jurisprudence has evolved three tests:
(1) the dangerous tendency test (2) the clear and present danger test (3) the
balancing of interest test.
(1). The Dangerous Tendency Test – The speech or expression may be curtailed or
punished when it creates a dangerous tendency which the State has the right to
prevent. This standard has been labeled the “dangerous tendency rule”[xi]
In a political
discussion held at a town municipio, citizen Perez made this remark:”And the
Filipinos, like myself, must use bolos for cutting off Wood’s head for having
recommended a bad thing for the Philippines
2. The Clear and Present Danger Test – The rule
was formulated by Justice Holmes in Schenck
v. United States, 249 U.S. 4 (1919) thus;”The question in every case is
whether the words used are used in such circmstances and are of such a nature
as to create a clear and present danger that they will bring about te
substantive evils that Congress has the a right to prevent. It is a question of
proximity and degree.
“Obvioulsy, the
words cannot mean that before the Government may act, it must wait until the
putsc is about to be executed, the plans have been laid and the signal is
awaited. If the Government is aware that
a group aiming at its overthrow is attempting to indoctrine its members and to
commit them to a course whereby they will strike when the leaders feel the
circumstances permt, action by the Government is required[xiii].
3. Balancing of
Interest test – Professor Kaupr explained the rule thus: It rest on the theory
that it is the Court’s function in case before it whether it finds public
interests served by legislation on one hand and the first amendment freedoms
affected by it on the other hand, to balance the one against the other and to
arrive at a judgment where the greater weight shall be placed[xiv].
A clear case of
violation of freedom of expression though the harassment of media was the
summons the military sent to several women in media. The Court, however, did not pass judgment on
the case but instead considered it moot since the military had discontinued the
interviews[xv].
From the
jurisprudence presented above, we can thus infer that if the State’s action is
given a more stringent standards or norms of regulation, how much more to a
juridical person or natural person whose action of prohibiting one’s right and
freedom of expression is violated merely by its capricious and whimsical act for
continuous dominance of its products by
imposing prior restraint and/or encroaching the right of a third person.
A sponsor
company has all the rights to advertise its products and services through the
use of multi media advertisement including the use of its trademark and trade
name but not to the extent of curtailng the people’s right to choose, to decide
and to support whom they think deserved
such support.
In
addition, it is important to note that
the right conferred to a trademark owner is the exclusive right to prevent
others from using such trademark in the course of the trade but the not the
right to prohibit a competitor’s trademark or trade name to be shown or
displayed in somebody’s shirt or the likes in an event of national interest and
importance.
V. CONCLUSION
Nowadays, people
from all walks of life are starting to realize the value of an event whether an
sports event, beauty pageant, international forum and conferences, trade and
tourism exposition and exhibition and the likes as long as those events could
bring a considerable benefits to the populace, to the government and will add certain degree of prestige to our
country.
The success of
such event is also measured by the number of its sponsors or the type of
sponsorships that it was able to secure.
So much so that a big sports event will inevitably attract sponsors with
competiting brands. In situation like
this and as discussed in detailed in the preceeding sections, certain rights
and freedom of expression should not be prejudiced or violated. One should know the scope and limitations of
its rights, one should be aware of others’ rights and one should be aware of
the consequences and accountabilities of his actions.
At the end of
the day, the State should always adhere to its guiding principles as embodied
in Section 1 of Article II of the 1987 Philippine Constitution which provides
that the Philippines is a Democratic and Republican State. Soveignty resides in
the People and all government authority emanates from them; and Section 4 of
Article III – Bill of Rights the same Constitution which provides that no law
shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peacebly to assembly and petition the
government for redress of grievances.
The
freedom of expression is an essential element of democracy and human
rights. It is fundamental to the democratic process, to good governance
and to exposing corruption and human rights violations. It may
legitimately be restricted only in certain prescribed circumstances. In
the case presented, none of the legitimate and valid restrictions exist to
merit restricition of such freedom[xvi].
[i] RA No. 8293 Section 2 – The State recognizes that an
effective intellectual and industrial property system is vital to the
development of domestic and creative activity, facilitates transfer of
technology, attracts foreign investments,and ensures market access for our
products. It shall protect and secure the
exclusive rights of scientists, inventors, artists and other gifted citizens to
their intellectual property and creations, particularly when beneficial to the
people, for such periods as provided in this Act.
The use of
intellectual property bears a social function. To this end,the State shall
promote the diffusion of knowledge and information for the promotion of
national development and progress and the common good.
It is also
the policy of the State to streamline administrative procedures of registering
patents, trademarks and copyright, to liberalize the registraion on the
transfer of technology, and to enhance the enforcement of intellectual property
rights in the Philippines
[iv] Article 1306 of the New Civil Code – The contracting 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.
[v] Article 1306 of the New Civil Code – The contracting 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.
[vii] Near v. Minnessota, 283 U.S. 697 (1931)
“When a nation is
at war, many things that might be said in time of peace are such a hindrance to
its effort that their utterance wll not be endured so long asmen fight and that
no court could regard them as protected by any constitutional right.No one
would question but the government might prevent actual obstruction to its recruiting
service or te publication of te sailing dates of transport or the nmber or
location of troops. On similar grounds,
the primar requirements of decency may be enforced against obscene
publications. Te security of te
community life may be protected against incitements to acts of violence and te
overthow by force of orderly government.
No comments:
Post a Comment