ETEPHA A.G. vs. DIRECTOR OF PATENTS and WESTMONT PHARMACEUTICALS INC.

"Stay with me"

8:15 p.m. I was on top of a building yesterday at the Ortigas area to have coffee and talk to a gorgeous woman. As I wait for her I walked over to the open lounge. I looked at the skies, and I've figured 'why there's not even a slightest trace of a storm coming?'. I could see the metropolis. The lights, the neons. And deep inside me I felt like violin strings in rhythmic patterns were playing some overture like that of a Batman movie. I felt the Dark Knight was standing there like a watchful guardian gazing at our own Gotham City.

Listen you know what? I spent my childhood living and grew up and played in one of the streets in Quezon City, particularly Guyabano St. in Project 2 Q.C. I could say that's one of the best times my life have ever had. My friends and I we played in the streets maybe not all but most of the Pinoy games. Tex, jolens, skateboards, bikes, go-karts, banggaan ng Tonka. We were the type where we're all well kept, sheltered and loved, yung tipong mga likod namen may mga white towel my goodness LOL, yung iba madalas hinahabol ng yaya, kaya pagmagusap kame we understand each other quickly, no proving, walang ere, wala masyadong away. And we loved it when we go out and play at night during summers especially during the 'ber' months where everything looks celebrative, happy and bright? ang sarap maglaro lalo pag Christmas na.. kase alam namen makakahawak na naman kame ng gun powder hehe (patago nga lang).

You know origami? we took out papers? and try learned the folds and make airplanes? So we took out crayons and colored and branded our planes. Mga dominant colors and logos ng superheroes, yung favorite namen. So ako pinapili una.. 'gusto ko si Batman'.. but the group agreed sakin daw dapat si Superman. E di kinuha ko.. since sya may pinakamalakas na powers. My best friend took Greenlantern which is really his favorite of all times, others took Flash, Spiderman... and then somebody took Batman... I told my self "Dang!".   I'd choose Batman over Superman anytime. I dunno for me since I was a kid and first owned my first Batman DC Comics (Although the first comics I've owned was Iron Fist) I've always admired him. Why? I dunno why. Maybe the mystique, the black suit. The mysteriousness of his being. Or maybe because he doesn't have powers, he's human, he feels, he's just like me. He's the outstretch of what the human mind and body can do.. even though the character was just a pigment of one's imagination. That fact that I could identify with him is more real.

Don't you know that Batman started as a detective when he was first written? He wasn't suppose to be a superhero. He was just suppose to be a super scientific hi-tech dude. And Bruce Wayne was an epitome not of a self-made man, he was just a billionaire playboy. The only difference is he's a philanthropist, if you google the word 'philanthropist' it means 'the love of humanity'.  A conventional modern definition is "private initiatives, for the public good, focusing on quality of life". So in a way it more than fits him. He got all the resources.

But you know? if I ever was the one who wrote Batman in DC Comics? I'd write him in a different manner. Maybe I'd keep the billionaire playboy type image, but I'd rewrite its romantic aspect. I would have him fall in love not in an ordinary conventional way. I'd give him a touch of etherealism.

You see if you look at the love interests of Batman (or Bruce Wayne), majority of them are socialites. Yes.. if you think it's only Rachel (Rachel Dawes), you're dead wrong. The real Batman had a string of love interests. Julie Madison was the first one. And she's royalty. Linda Page, another socialite. Of course there's the reporter Vicki Vale. Selina Kyle of course as we all know she's Catwoman. Who else.. Thalia al Ghul who's the daughter of one villain. Pamela Isley of course remember her? Ms. Poison Ivy? Natalia Knight, otherwise known as Nocturna, Julia Penyworth the daughter of Alfred (playboy talaga to eh). Sino pa ba.. si Wonder Woman of course. Although alam ko friends lang sila non.. pero when we were kids and nanunuod kame ng Superfriends (when you say Superfriends that means not on the Avenger side, means I'm talkin' about the Justice League side)  ang tanong ko lage "Bakit si Batman laging nakasakay sa invisible plane ni Wonderwoman? Sila ba?" (hihihi). There were times tatalon si Wonderwoman from the plane so si Batman magdadrive "Whuuuuuuuhhuhuu!!.. sabi na nga ba may something to eh" Who else.. well there's Black Canary na sinulot nya kay Green Arrow. Si Jillian Maxwell. who when he met at a party naging suspicioso si Alfred and therefore led him to check her background, turned out she's another villain. (geez halos lahat may criminal record haha, well not naman lahat). Charlotte Rivers.. but she's just another reporter of course. And many others. But these are not what I'm talking about. What I'm looking for is something like Lorna Shore.. the museum curator he met back then when they were kids. It was love at first sight as Bruce was able to find peace when he was with her for the first time since he was 8 years old after his parents got murdered. Kaya lang ang babaw ng storyline nilang dalawa. He left Lorna Shore co'z the Joker was getting suspicious who were the most important people in his life other than his dead parents, and he just doesn't want anything grave to happen to her. And so he took off to distract the Joker to gear the danger away from her. But that doesn't prove anything when you don't face everything together. I want someone that never left his side.  

I'm looking for something that has depth, something like more of a spirit he carries with him in his battles. Yung hindi lang playboy and met her at the course of his adventures. I want something that is intact. Like it's a contiguous part of him. There must be a base or something, a place not to just go back there to strengthen his weapons, but to nurse his wounds and to feel a peaceful beautiful loving presence. Yung tipong napakagandang babae with ethereal beauty na nakatira in an old Victorian mansion katabi lang ng batcave. That he falls deeply in love and he grew up with, and was sadly taken away from him by death and since then on she remained with him wherever he goes. Dang! that would be something. Yung may substance. Yung nandun sa puso mo at talagang walang makakacompete. And comes out to him in a dream or something and helps him in times of dire need.  Boy I'd rewrite him like that.

Anyway here's the case mga 'pañero.

Respondent WESTMONT PHARMACEUTICALS, INC., a New York corporation, sought registration of trademark "ATUSSIN" a medicine used in the treatment of cough.  

Petitioner, ETEPHA, A. G., a corporation, objected. Petitioner claims  “ATUSSIN” is so CONFUSINGLY SIMILAR to its “PERTUSSIN” which is also used in treatment of coughs. And that the buying public will be misled into believing that Westmont's product is that of petitioner's which allegedly enjoys goodwill. (syempre nauna sila e)

So the Director of Patents is left with a choice..

May trademark ATUSSIN be registered, given the fact that PERTUSSIN, another trademark, which filed its objection had been previously registered in the Patent Office? — the DIRECTOR OF PATENTS ANSWERED AFFIRMATIVELY. 

Hence this appeal. Let's see if his decision will hold.

ISSUE: 

Was there a TRADEMARK INFRINGEMENT?

RULING:

NONE.

Court said the objects of a trademark are :

1. "TO POINT OUT DISTINCTLY THE ORIGIN OR OWNERSHIP of the articles to which it is affixed

2. To secure to him who has been instrumental in bringing into market a superior article or merchandise the fruit of his industry and skill, and 

3.  To PREVENT FRAUD AND IMPOSITION."

1. NO COLORABLE IMITATION 

And the court stressed that we are to be guided by the rule that the validity of a cause for infringement is predicated upon COLORABLE IMITATION. The phrase "colorable imitation" denotes such a "CLOSE OR INGENIOUS IMITATION AS TO BE CALCULATED TO DECEIVE ORDINARY PERSONS, OR SUCH A RESEMBLANCE TO THE ORIGINAL AS TO DECEIVE AN ORDINARY PURCHASER, GIVING SUCH ATTENTION AS A PURCHASER USUALLY GIVES, AND TO CAUSE HIM TO PURCHASE THE ONE SUPPOSING IT TO BE THE OTHER."

2. IT'S COMMON PRACTICE

That the word "TUSSIN" figures as a component of both trademarks (Atussin & Pertussin) is nothing to wonder at. The Director of Patents aptly observes that it is "the common practice in the drug and pharmaceutical industries to 'fabricate' marks by using syllables or words suggestive of the ailments for which they are intended and adding thereto distinctive prefixes or suffixes". 

The "tussin" (in Pertussin and Atussin) was derived from the Latin root-word "tussis" meaning cough."Tussin" is MERELY DESCRIPTIVE; it is generic. It is accordingly barred from registration as trademark. 

E biro mo nga naman you register a generic word as your trademark e parang sinabe mo na na di nyo pede gamitin yung word na "love" kase ginamet ko na naparegister ko na. 

Iregister yon ng Director of Patents then it ends up as appellant having practically a monopoly of the word "tussin" in a trademark. Di ba?

Eto ang sabe ng korte... "While "tussin" by itself cannot thus be used exclusively to identify one's goods, it may properly become the subject of a trademark "by combination with another word or phrase". And this union of words is reflected in petitioner's Pertussin and respondent's Atussin, the first with prefix "Per" and the second with Prefix "A".

So there's no bone of contention right? 

3. VISUAL IMPRESSION

The court continued "The horizontal plain, block letters of Atussin and the diagonally and artistically upward writing of Pertussin leave distinct visual impressions. One look is enough to denude the mind of that illuminating similarity so essential for a trademark infringement case to prosper.

So yun naman pala eh.. horizontal yun lettering nung isa, yun isa naman diagonal upward.. sino pa ba magkakamali non? 

4. PHONETIC SIMILARITY

Eto pa sabe ng korte "As we take up Pertussin and Atussin once again, we cannot escape notice of the fact that the two words do not sound alike — when pronounced."

So it's clear there's no phonetic similarity between the two..

5. BY PRESCRIPTION

"Petitioner's and respondent's products are to be dispensed upon medical prescription.  The respective labels say so. An intending buyer must have to go first to a licensed doctor of medicine; he receives instructions as to what to purchase; he reads the doctor's prescription; he knows what he is to buy."

Yun ang akala nyo..

"We concede the possibility that buyers might be able to obtain Pertussin or Attusin without prescription. When this happens, then the buyer must be one thoroughly familiar with what he intends to get, else he would not have the temerity to ask for a medicine — specifically needed to cure a given ailment." 

Well at least the court conceded to the usual practice.. 

So the registration of Attusin was affirmed. Westmont wins this case.