One of the disappointments for U.S. law students who specialize in intellectual property is that there isn’t room on the bar exam for copyright or trademark questions; what with the need to cover 19th Century criminal and property law. This is apparently not the case in the Philippines. LAWPHiL has posted the questions from the Mercantile Law September 2009 Bar Exam, which featured a couple of fun IP questions.
You’re more than welcome to answer the questions in the comments. The winner will be openly ridiculed. The decision of the judges is final.
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
- The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted.
XV
After disposing of his last opponent in only two rounds in Las Vegas, the renowned Filipino boxer Sonny Bachao arrived at the Ninoy Aquino International Airport met by thousands of hero-worshipping fans and hundreds of media photographers. The following day, a colored photograph of Sonny wearing a black polo shirt embroidered with the 2-inch Lacoste crocodile logo appeared on the front page of every Philippine newspaper.
Lacoste International, the French firm that manufactures Lacoste apparel and owns the Lacoste trademark, decided to cash in on the universal popularity of the boxing icon. It reprinted the photographs, with the permission of the newspaper publishers, and went on a world-wide blitz of print commercials in which Sonny is shown wearing a Lacoste shirt alongside the phrase “Sonny Bachao just loves Lacoste.”
When Sonny sees the Lacoste advertisements, he hires you as lawyer and asks you to sue Lacoste International before a Philippine court:
- For trademark infringement in the Philippines because Lacoste International used his image without his permission; (2%)
- For copyright infringement because of the unauthorized use of the published photographs; (2%) and
- For injunction in order to stop Lacoste International from featuring him in their commercials. (2%)
- Can Lacoste International validly invoke the defense that it is not a Philippine company and, therefore, Philippine courts have no jurisdiction? Explain. (2%)
Will these actions prosper? Explain.
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One Comment
I’ll give it a shot. Disclaimer: I am Argentinian.
I.A. It’s not a Copyright question but one involving Patent or industrial designs laws.
IV.
a. Trademark infraction: Only if he owns the relevant trademarks over his name. If not it’s also and infraction of Law 18.248 which protects the name (and surname).
His image and privacy are also protected by our laws.
b. Copyright infraction over the photograph: It will fail because the copyright belongs to the person that took the photograph.
c. Difficult to say. There is an issue of freedom of expression which cover commercials. I don’t think a Judge will grant an injuction.
d. If the campaign included Philippine the argument will be rejected.