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Elidad Kho v. Court of Appeals

G.R. No. 115758 March 19, 2002
De Leon, Jr., J.:
Facts:
Elidad Kho, doing business under the name of KEC Cosmetics Laboratory and is the
registered owner of copyright Chin Chun Su and Oval Facial Cream Container with a patent
right on Chin Chun Su & Device and Chin Chun Su for medicated cream after purchasing the
same from Quintin Cheng, a registered owner in Supplemental Register of the Philippine Patent
Office.
It alleges that respondent Summerville advertised and sold the petitioner’s cream
products under the brand name Chin Chun Su using similar container that the petitioner used
thereby misleading the public and depriving the petitioner of business sales and income. It
enjoins the respondent from allegedly infringing its copyright and patent right over the same
product.
In defense respondent claims to be the exclusive and authorized importer, re-packer and
distributor of the Chin Chun Su product manufactured by Shun Yi Factory in Taiwan
authorizing Summerville to register its trade name Chin Chun Su Medicated Cream with the
Philippine Patent Office. It also points out that the assignee of the patent registration
certification in the Philippines, Quintin Cheng, has already been terminated by the said
Taiwanese Manufacturing Company.
Trial court granted the injunction in favor of the petitioner. On appeal, respondent prays
for the nullification of the writ of preliminary injunction which was set aside by the Court of
Appeals on the account that the registration of the trademark Chin Chun Su by KEC with the
supplemental register of the Bureau of Patents, Trademarks and Technology Transfer cannot
be equated with registration in the principal register duly protected by the Trademark law.
Issue:
Whether or not petitioner is entitled to the exclusive use of the trademark Chin Chun
Su based on her copyright and patent registration over the product.
Ruling:
No. Trademark, copyright and patents are different intellectual property rights that
cannot be interchanged with one another. A trademark is 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. In relation thereto, a trade name means the
name or designation identifying or distinguishing an enterprise. Meanwhile, the scope of a
copyright is confined to literary and artistic works which are original intellectual creations in
the literary and artistic domain protected from the moment of their creation. Patentable
inventions, on the other hand, refer to any technical solution of a problem in any field of human
activity which is new, involves an inventive step and is industrially applicable.

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Petitioner has no right to support her claim for the exclusive use of the subject trade
name and its container. The name and container of a beauty cream product are proper subjects
of a trademark inasmuch as the same falls squarely within its definition.
In order to be entitled to exclusively use the same in the sale of the beauty cream
product, the user must sufficiently prove that she registered or used it before anybody else did.
The petitioner’s copyright and patent registration of the name and container would not
guarantee her right to the exclusive use of the same for the reason that they are not appropriate
subjects of the said intellectual rights. Consequently, a preliminary injunction order cannot be
issued for the reason that the petitioner has not proven that she has a clear right over the said
name and container to the exclusion of others, not having proven that she has registered a
trademark thereto or used the same before anyone did.
Opinion:

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Francisco G. Joaquin v. Franklin Drilon

G.R. No. 108946 January 28, 1999
Mendoza, J.:
Facts:
BJ Productions, Inc. (BJPI) holder or grantee of Certificate of Copyright of Rhoda and
Me, a dating game show aired from 1970 to 1977. On June 28, 1973, BJPI submitted to the
National Library an addendum to its certificate of copyright specifying the show’s format and
style of presentation.
While watching the television, BJPI President, Francisco Joaquin, saw the “It’s a Date”
show of RPN 9. He then wrote a letter to Zosa that BJPI had a copyright to Rhoda and Me and
demanding that IXL to discontinue airing It’s a Date.
In a reply with the respondent, he apologized to the petitioner and requested a meeting
to discuss possible amicable settlement on the matter, however, IXL continued airing the
program, prompting Joaquin to send a second letter, in which he reiterated his demand and
warned that, if IXL did not comply, he would endorse the matter to his attorney for proper legal
action.
Meanwhile, Zosa sought to register IXL’s copyright to the first episode of It’s a Date
for which it was issued by the National Library a Certificate of Copyright.
Upon complaint of petitioner, an information for violation was filed against Zosa
together with certain officers of RPN 9.
The investigating prosecutor found probable cause against Zosa. Zosa later sought a
review of the prosecutor’s resolution before the Secretary of Justice, wherein it reversed the
Assistant City Prosecutor’s findings and directed him to move for the dismissal of the case
against private respondents.
Petitioner Joaquin filed motion for reconsideration but such was denied.
Issue:
Whether the format or mechanics or petitioner’s television show is entitled to copyright
protection.
Ruling:
No. The Court ruled that the format of the show is not copyrightable. Sec. 2 of PD No.
49, otherwise known as the Decree on Intellectual Property, enumerates the classes of work
entitled to copyright protection. The provision is substantially the same as Sec. 172 of the
Intellectual Property Code of the Philippines (RA 8293). The format or mechanics of a
television show is not included in the list of protected works in Sec. 2 of PD No. 49. For this
reason, the protection afforded by the law cannot be extended to cover them.
Copyright, in the strict sense of the term, is purely a statutory right. It is a new
independent right granted by the statute and not simply a pre-existing right regulated by the
statute. Being a statutory grant, the rights are only such as the statute confers, and may be

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obtained and enjoyed only with respect to the subjects and by the person and on terms and
conditions specified in the statute.
The Court is of the opinion that petitioner BJPI’s copyright covers audio-visual
recordings of each episode of Rhoda and Me, as falling within the class of works mentioned in
PD 49. The copyright does not extend to the general concept or format of its dating game show.
Mere description by words of the general format of the two dating game shows is
insufficient; the presentation of the master videotape in evidence was indispensable to the
determination of the existence of a probable cause.
A television show includes more than mere words can describe because it involves a
whole spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity
may be found by merely describing the general copyright / format of both dating game shows.
Opinion:
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Bayanihan Music v. BMG, Jose Mari Chan

G.R. No. 166337 March 7, 2005
Facts:
Chan entered into a contract with Bayanihan, assigning all his rights, interests and
participation to Bayanihan for his song “Can We Just Stop and Talk a While” and after that,
for the song “Afraid to Love to Fade.” On the basis of such assignment, Bayanihan applied for
and was granted by the National Library a Certificate of Copyright Registration for each of the
2 musical compositions in a then recently released album of Lea Salonga without the
knowledge of Bayanihan. Bayanihan informed Chan and BMG of its existing copyrights over
the songs and the alleged violation of such rights by the respondents, demanding to settle the
matter but to settlement was made.
Bayanihan filed before the Quezon City RTC a complaint against Chan and BMG for
violation of Sec. 216 of RA 8293, praying for the issuance of TRO and/or writ of preliminary
injunction enjoining BMG from further recording and distributing the subject musical
compositions in whatever form or musical products, and Chan from further granting any
authority to record and distribute the same musical compositions.
BMG countered that the acts of recording and publication has been done and a TRO or
injunction would be moot and that there is no clear showing that Bayanihan will be greatly
damaged by the refusal of the prayer for TRO/injunction. BMG also pleaded a cross-claim
against Chan for violation of his warranty that his compositions are free from claims of third
persons and counterclaim for damages against Bayanihan.
Chan alleged that he never intended to divest himself of all his rights and interest over
the musical compositionl that the contracts entered into with Bayanihan were mere music
publications giving Bayanihan as assignees, the power to administer his copyright over his 2
songs and act as the exclusive publisher; that he was not cognizant of application and grant of
copyright certification over his 2 songs to Bayanihan; and that Bayanihan was remiss of its
obligations under the contract because it failed to effectively advertise the songs for almost 20
years. Hence, the rescission of the contracts in 1997. Chan also filed a counterclaim for
damages against Bayanihan.
The RTC denied the TRO as well as the injunction. The Court of Appeals affirmed the
RTC ruling.
Issue:
Whether or not Chan, the creator, is entitled to the copyright protection.
Ruling:
Yes. Chan being the composer and author of the lyrics of the 2 songs is protected by
the mere fact alone that he is the creator thereof, conformably with RA 8293, Sec. 172.2, which
provides that works are protected by the sole fact of their creation, irrespective of their mode
or form of expression, as well as of their content and quality and purpose.
Also, as provided in the contracts Chan entered into with Bayanihan was the agreement
that in the event the publisher fails to use in any manner within 2 years any of the compositions

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covered by the contract, the composition may be released in favor of the writer and excluded
from the contract. The publisher shall execute the necessary release in writing of the writer
upon the request of the writer.
Opinion:

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ABS-CBN Broadcasting Corp., v. Philippine Multi-Media System

G.R. No. 175769-70 January 19, 2009
Ynares-Santiago, J. :

Facts:
Philippine Multi-Media System, Inc. (PMSI) is a signal provider which has cable and
satellite services. It is providing its satellite services through Dream Broadcasting System.
PMSI has its “Free TV” and “Premium Channels”. The Free TV includes ABS-CBN, GMA-7,
and other local networks. The premium channels include AXN, Jack TV, etc which were paid
by subscribers before such channels can be transmitted as feeds to a subscriber’s TV set which
has been installed with a Dream satellite.
ABS-CBN is a television and broadcasting corporation. It broadcasts television
programs by wireless means to Metro Manila and nearby provinces, and by satellite to
provincial stations through Channel 2 and Channel 23.
In May 2002, ABS-CBN sued PMSI for allegedly engaging in rebroadcasting and
thereby infringing on ABS-CBN’s copyrights; that the transmission of Channels 2 and 23 to
the provinces where these two channels are not usually shown altered ABS-CBN’s
programming for the said provinces. PMSI argued that it is not infringing upon ABS-CBN’s
copyrights because it is operating under the “Must-Carry Rule” outlined in NTC (National
Telecommunications Commission) Circular No. 4-08-88.
The IPO Bureau of Legal Affairs found PMSI to have infringed petitioner’s
broadcasting rights and ordered it to permanently desist from rebroadcasting. On appeal, the
IPO Director General found for PMSI. The Court of Appeals affirmed the decision.
Issue:
1. Whether or not PMSI is covered by the “Must-Carry Rule”.
2. Whether or not petitioner’s broadcasting rights and copyright are infringed.
Ruling:
Must-Carry Rule
Yes. The “Must-Carry Rule” under NTC Circular No. 4-08-88 falls under the
limitations on copyright. The Filipino people must be given wider access to more sources of
news, information, education, sports event and entertainment programs other than those
provided for by mass media and afforded television programs to attain a well informed, well-
versed and culturally refined citizenry and enhance their socio-economic growth. The very
intent and spirit of the NTC Circular will prevent a situation whereby station owners and a few
networks would have unfettered power to make time available only to the highest bidders, to
communicate only their own views on public issues, people, and to permit on the air only those
with whom they agreed – contrary to the state policy that the (franchise) grantee like ABS-
CBN, and other TV station owners and even the likes of PMSI, shall provide at all times sound
and balanced programming and assist in the functions of public information and education.

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PMSI was likewise granted a legislative franchise under Republic Act No. 8630,
Section 4 of which similarly states that it “shall provide adequate public service time to enable
the government, through the said broadcasting stations, to reach the population on important
public issues; provide at all times sound and balanced programming; promote public
participation such as in community programming; assist in the functions of public information
and education.
The “Must-Carry Rule” favors both broadcasting organizations and the public. It
prevents cable television companies from excluding broadcasting organization especially in
those places not reached by signal. Also, the rule prevents cable television companies from
depriving viewers in far-flung areas the enjoyment of programs available to city viewers.
Broadcasting rights and copyright
No. PMSI is not engaged in rebroadcasting and thus cannot be considered to have
infringed ABS-CBN’s broadcasting rights and copyright.
Section 202.7 of the IP Code defines broadcasting as “the transmission by wireless
means for the public reception of sounds or of images or of representations thereof; such
transmission by satellite is also ‘broadcasting’ where the means for decrypting are provided to
the public by the broadcasting organization or with its consent.” On the other hand,
rebroadcasting as defined in Article 3(g) of the 1961 Rome Convention, of which the Republic
of the Philippines is a signatory, is “the simultaneous broadcasting by one broadcasting
organization of the broadcast of another broadcasting organization.” The Working Paper
prepared by the Secretariat of the Standing Committee on Copyright and Related Rights defines
broadcasting organizations as “entities that take the financial and editorial responsibility for
the selection and arrangement of, and investment in, the transmitted content.” Evidently, PMSI
would not qualify as a broadcasting organization because it does not have the aforementioned
responsibilities imposed upon broadcasting organizations, such as ABS-CBN.
PMSI does not produce, select, or determine the programs to be shown in Channels 2
and 23. Likewise, it does not pass itself off as the origin or author of such programs. Insofar as
Channels 2 and 23 are concerned, PMSI merely retransmits the same. Clearly, PMSI does not
perform the functions of a broadcasting organization; thus, it cannot be said that it is engaged
in rebroadcasting Channels 2 and 23.
Opinion:
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Pacita I. Habana, et al. v. Felicidad Robles and Goodwill Trading

G.R. No. 131522 July 19, 1999
Pardo, J.:
Facts:
Pacita Habana et al., are authors and copyright holders of books on the English language
(College English for Today—Book 1 and 2, and Workbook for College Freshman English).
They were revising their books and were scouting for other books of similar subject matter
when they chanced upon the books of Felicidad Robles, published by Goodwill Trading Co.
Inc. (Developing English Proficiency—Books 1 and 2). Upon further perusal they discovered
that the content of said books was very much similar to theirs, and in fact several pages were
even identical. Some illustrative examples were exactly the same. However, while herein
Petitioners researched on said examples by foreign authors and made due acknowledgement,
Respondents made use of the same and never cited the authors. They did not even cite the
Petitioners as the first to use said example.
Petitioners tried to settle the matter extra-judicially by asking Respondents to cease and
desist from selling and distributing the books and by claiming for damages due to lost profit.
But said demands were ignored. So they filed action for Infringement and/or Unfair
Competition with damages before the RTC against Respondents and Goodwill. They allege
respondent Felicidad C. Robles being substantially familiar with the contents of petitioners'
works, and without securing their permission, lifted, copied, plagiarized and/or transposed
certain portions of their book CET.
On the other hand, Robles contends that the book DEP is the product of her own
intellectual creation, and was not a copy of any existing valid copyrighted book and that the
similarities may be due to the authors' exercise of the "right to fair use of copyrighted materials,
as guides."
The trial court ruled in favor of Respondents and dismissed the claim against Goodwill.
It subscribed to the arguments of Respondents that there was no plagiarism resulting to
Infringement because the examples were by foreign authors and for educational purposes
subject to fair use. It also agreed with Respondents that the similarities were brought about by
the fact that the books dealt with the same subject matter and adhered to the same presentation
format prescribed by the Philippine Colleges of Arts and Sciences (APCAS).
Petitioners appealed before the CA. But just the same, the appellate court ruled in favor
of Respondents opining that the topics said to be plagiarized were also topics or matters also
found in earlier books on college English, even including foreign books. But it ruled that
Petitioners were not in bad faith in filing the claim.
Issue:
Whether or not Robles committed infringement in the production of the book
Developing English Proficiency.

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Ruling:
Yes. A perusal of the records yields several pages of the book DEP that are similar if
not identical with the text of CET. In several other pages the treatment and manner of
presentation of the topics of DEP are similar if not a rehash of that contained in CET. The
similarities in examples and material contents are so obviously present in this case. How can
similar/identical examples not be considered as a mark of copying? Robles’ act of lifting from
the book of Habana et al substantial portions of discussions and examples, and her failure to
acknowledge the same in her book is an infringement of Habana et al’s copyrights.
The Supreme Court also elucidated that in determining the question of infringement,
the amount of matter copied from the copyrighted work is an important consideration. To
constitute infringement, it is not necessary that the whole or even a large portion of the work
shall have been copied. If so much is taken that the value of the original is sensibly diminished,
or the labors of the original author are substantially and to an injurious extent appropriated by
another, that is sufficient in point of law to constitute piracy.
In cases of infringement, copying alone is not what is prohibited. The copying must
produce an “injurious effect.” Here, the injury consists in that respondent Robles lifted from
petitioners’ book materials that were the result of the latter’s research work and compilation
and misrepresented them as her own. She circulated the book DEP for commercial use and did
not acknowledge petitioners as her source.
Ruling that substantial portions of the book were copied, the Court held that the
infringed book should have properly cited its sources. Hence, work that is copied without a
proper attribution to its source constitutes an injury to the original author, amounting to an
infringement of the co-authors’ copyright
Opinion:
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NBI-Microsoft Corp. v. Judy Hwang, et al.

G.R. No. 147043 June 21, 2005
Carpio, J.:
Facts:
Microsoft Corp., owns the copyright and trademark to several computer software, while
Private Respondents are President/Managing Director, Gen. Manager, and Director of Beltron
Computer Philippines, Inc. and Taiwan Machinery Display & Trade Center, Inc., both domestic
corporations.
Microsoft and Beltron entered into a Licensing Agreement, authorizing Beltron to
reproduce and install no more than one copy of Microsoft software on each Customer System
hard disk or Read Only Memory (ROM) and distribute directly or indirectly and license copies
of the Product. Microsoft terminated the Agreement for Beltron’s non-payment of royalties.
Afterwards, Microsoft learned that respondents were illegally copying and selling Microsoft
software. Hence, Microsoft hired the services of Pinkerton Consulting Services, a private
investigative firm, and sought the assistance of the National Bureau of Investigation. The
investigating agents, posing as representatives of a computer shop, bought computer hardware
and software from respondents. The items contain Microsoft Software, and the ROMs are
encased in containers with Microsoft packaging. The Agents were not given the Microsoft end-
user license agreements, user’s manuals, registration cards or certificates of authenticity for the
articles they purchased.
Based on articles obtained, petitioner charged respondents before the DOJ with
Copyright Infringement and Unfair Competition. The DOJ dismissed Microsoft’s complaint
for lack of merit and insufficiency of evidence. Hence, this petition.
Issue:
Whether or not Private Respondents are liable for copyright infringement and unfair
competition.
Ruling:
Yes. Section 5 of PD 49 enumerates the rights vested exclusively on the copyright
owner. Contrary to the DOJ’s ruling, the gravamen of copyright infringement is not merely the
unauthorized manufacturing of intellectual works but rather the unauthorized performance of
any of the acts covered by Section 5. Hence, any person who performs any of the acts under
Section 5 without obtaining the copyright owners prior consent renders himself civilly and
criminally liable for copyright infringement.
Some of the counterfeit CD-ROMs bought from respondents were installer CD-ROMs
containing Microsoft software only or both Microsoft and non-Microsoft software. These
articles are counterfeit per se because Microsoft does not and could not have authorized anyone
to produce such CD-ROMs. The copying of the genuine Microsoft software to produce these
fake CD-ROMs and their distribution are illegal even if the copier or distributor is a Microsoft
licensee. The illegality of the non-installer CD-ROMs purchased from respondents and of the
Microsoft software pre-installed in the CPU is shown by the absence of the standard features

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accompanying authentic Microsoft products, namely, the Microsoft end-user license

agreements, user’s manuals, registration cards or certificates of authenticity.
The counterfeit non-installer CD-ROMs that the Agents bought from respondents also
suffice to support a finding of probable cause to indict respondents for unfair competition under
Article 189(1) of the Revised Penal Code for passing off Microsoft products. From the pictures
of the CD-ROMs packaging, one cannot distinguish them from the packaging of CD-ROMs
containing genuine Microsoft software. Such replication, coupled with the similarity of content
of these fake CD-ROMs and the CD-ROMs with genuine Microsoft software, implies intent to
deceive.
Opinion:

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Manly Sportswear Manufacturing, Inc. v. Dadodette Enterprises and/or Hermes Sports

Center
G.R. No. 165306 September 20, 2005
Ynares-Santiago, J.
Facts:
The NBI secured a search warrant from the RTC Quezon City, Branch 83 to act upon
the information that respondents were in possession of goods copyright of which belongs to
the petitioner. Finding reasonable grounds in violation of Section 172 and 217 of RA 8293 a
search warrant was issued. Respondents move to quash and annul the search warrant
contending it is invalid and the requisites for its issuance are not complied with. They insist
that the sporting goods manufactured and registered in the name MANLY is just ordinary and
common and not among the classes protected under RA 8293.
The court granted the motion to quash declaring the search warrant null and void
because there were certificates of registrations issued earlier than MANLY for the same
sporting goods under various brands thereby negating the fact that their products are
copyrighted and original creations. Motion for reconsideration was denied by the appellate
court sustaining the lower court’s decision thus this instant petition for review for certiorari.
Issue:
Whether or not the certificate of registration in favor of MANLY sustains the action
against the respondent.
Ruling:
No. petitioner is not protected by the copyright law despite the issuance of the copyright
certificate of registration as it merely gives prima facie evidence of the validity and ownership.
Therefore if the there are sufficient evidence that the copyrighted products are not original
creations and are readily available in the market under various brands, validity and originality
will not be presumed therefore the trial court has the right to quash the issued warrant for lack
of probable cause. Moreover no copyright accrues to the petitioner since Sec. 2, Rule 7 of the
Copyrights Safeguards and Regulations provides that the registration and deposit of work is
purely for recording the date of registration and is not conclusive as to the copyright ownership.
In the case at bar, validity and originality will not be presumed since the copyrighted
products of MANLY are not original creations considering that these products are readily
available in the market under various brands.
Moreover, no copyright accrues in favor of MANLY despite the issuance of the
copyright certificate, the certificates of registration and deposit issued by the National Library
and the Supreme Court Library serve merely as a notice of recording and registration of the
work but do not confer any right or title upon the registered copyright owner or automatically
put his work under the protective mantle of the copyright law. It is not a conclusive proof of
copyright ownership.
As it is, non-registration and deposit of the work within the prescribed period only
makes the copyright owner liable to pay a fine.

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Opinion:
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