Rip Burn Remix

We always think of the future of our children. But, what is the future that we are preparing for them?  Is it the same future that they want or what we want them to have?  Professor Lessig talked about the future which he wants his kids to have in as much as all the kids in the world must have.  He recognized that nowadays most children are obsessed with mind craft and you tube.  We don’t deny such fact, that it is not only mind craft and you tube that occupies most of the time of our younger generation but rather so many social websites and internet games. 

The project Creative Commons is dear to the heart of Professor Lessig. He mentions that most

members around the world possess common set of values and ideas, culture and knowledge.  But, what he wants is that these values and ideas are intertwined with culture and knowledge that must be widely accessible to all.

He emphasizes on sharing these ideas to the world and that people share them as much as they can.  He said that what we share are too little from our culture. That there is a need to share more and to share legally. What do we really share? Is it what is legal or illegal?  Are we sharing that which is deemed legal to us or what other people deemed as illegal or that which is against the law.

There is a need to share more as many people as much as many cultures around the world.

There is a need to establish one movement, which may sound as a very long way to go.  To share more and to focus more. 

In the Philippines, the younger generation is not only obsessed with mind craft and you tube.  More young people are deeply involved with developing their talents and sharing these talents using the internet posting not only in YouTube but in so many websites.

Professor Lessig proposes this thing called Remix which has become as something that needs to be expressed and involved in our culture.  We seemed to be concerned of too much control in terms of

policy that people had a hard time in personal expression.

            Anywhere around the world, there is this problem of copyright. This thing called Remix is not entirely new, but it needs an enabling action, a law that protects the rights of the people in creative remix.

There is this way which is a time honored call and response.  This is what is asked in a culture to respond to the changing times and to the changing directions of people’s lives.

Problems of piracy and registry are central to the copyright and that which must be improved.  We focus on the connectivity of culture in the changing times.   Do we really need to deeply regulate culture? Or is culture free to evolve as man revolutionize his way of life?

Is culture not heavily intertwined with the regulation and policies of every government?

Does culture and government policy do well or harm to the people?

Professor Lessig sees copyright law that connects to the way culture is changing and that

laws on copyright must change.

He emphasized on call and response. What is this?   He refers to this new movement. The remix.

It is a kind of culture which will make people feel empowered. The people must be entitled to this right. 

There is this obligation to participate in the creation and recreation of culture which is produced by a technology called the digital technology.  It creates efficiency for which the consumption facilitates the art of listening and speaking as well as reading and writing.

This new culture which read and write our culture as well as rewrite our culture.

We need laws that will entitle our people to recreate our culture.  But certainly for good.

All of us should support a new movement, a new world which allows a certain culture to redefine and recreate a new culture. This is what this new movement is all about.

This Remix movement sees lawyers as people who need to recognize that this change is good.  It is how to express oneself for greater diversity and to further our culture.

Do we have the right to discourage this thing called cultural creativity when the changing times call for it?

Suppose that this new cultural creativity present as not good in the senses of a person or group of people by what right can anybody discourage it?

Professor Lessig stresses this cultural policy that encourage creators.  Does the doctrine of fair use puts copyright on a defensive? 

Does Philippine copyright law encourage creators? Or does it give every Filipino the right to control the particular use of his own creation?

Professor Lessig promotes sharing.  The form of sharing creativity as a culture of expression.

A technology that will function universally is imbibed in this opportunity of humans sharing creativity.

The Intellectual Property Law is not sharing. It is putting that word “sharing” in an encapsulated controlled protective mode.

The right to fair use is a constitutionally protective right in the US.

What Professor Lessig emphasized is the context of remix.  There have been protests in Berlin against ACTA. But, this remix is an advocacy of righttoremix.org

The world now lives in age of remix which means that everything is remixed.

There is a need to recognize this idea of remix.  Laws must be passed to encourage and protect remix creativity. 

Professor Lessig does not perceive Creative Commons as a solution to the problem. His profound idea of licenses is that it does not provide freedom to culture.  In other words, there should be the capacity to remix. This capacity to remix is a general human right.

This new movement of Rip, mix burn must be shared legally.  Hence, we need to support enabling laws that will recognize this general human right.

We need to share more by actively participating in this movement because we are sharing creativity.

Sharing creativity is a basic human right. This is democracy in its new perspective.

By giving new light in this creativity sharing. this will be demonstrated in this generation and for all generations to come.

We are empowering our artists the right to create and recreate by writing and rewriting which will deeply value every man’s right of expression.

The only way that we can create change is to participate in the advocacy for the creation of laws that will foster the freedom of expression as a means of enhancing creativity sharing.

However, Professor Lessig sees Creative Commons as a preparation in solving the problem of creativity sharing.

Simply put, do we allow creators to choose their means of exploiting their talents or the lawyers to define the limits of this freedom?

To demonstrate this fight for freedom is taking its limelight and to encourage the right to fight for this freedom is inevitable.

The very essence of Creative Commons is the act of attribution.

License requires the licensee to use attribution.  This is the concept of respect

As it is said respect does not come from law but the people who recognize the law pays respect thereby.

Our government recognizes that intellectual property is necessary for  progress.

 All domestic and creative activity is facilitated by transfer of technology which promotes foreign investments.

To guarantee and protect the rights of creators, their intellectual property and creations are recognized for their being beneficial to the people.

All told, to encourage and empower our people generates a culture that creates solution to creators.  A culture for this new remix civilization is not entirely new.

To attribute to a person of his creation is a norm in every society.

We must recognize the value of creation as well as recreation.

There is this Global anti-corruption movement. Anywhere else in the world, people are clamoring for change. Most people are adamant to change.

Anti-corruption is most often depicted in artistic expression.

This culture of internet freedom is a new free culture movement which needs an enabling law to protect creators.

We need to emphasize that sharing is not stealing but rather a new wave of artistic inclination.

This internet freedom is a new mode of cultural expression.

The sharing of creators of their artistic creations must be protected by policy.

Professor Lessig sees that Creative Commons does not support this creation and recreation of our artist.

In the Philippines, we need enabling laws to recognize this culture of creation and recreation.

This is what we should focus on what our children should develop.

This remix culture is now going global.

The Philippines does not only need policy by laws that protect a new generation of creators but rather laws that will sustain an economy of players in the creative art.

The Intellectual Property Code of the Philippines embody the protective rights of the copyright owners.

The Remix art is something new

Remixes are derived from a piece of music (most of the times are composed of more than one), the problem is that about the violation of intellectual property law.

The issue is whether a person who created the remix is allowed to recreate another person’s work, or whether or not the recreated art is classified as one of a derivative work . 

In the Philippines there are so many issues whether such visual work is legal or not, for example, the collage art form.  The collage art form had been questioned whether this is legal or not.

Derivative works is one of those protected under Philippine copyright law. Derivative works such as dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents are protected by Philippine Copyright Law or Republic Act 8293.

 These derivative works are protected as new works provided that such new work shall not affect the force of any subsisting copyright upon the original works employed or any part of the original work or such recreated work may result to violation of any right to such use of the original works, or to secure or extend copyright in such original works.

In addition to the right to publish granted by the author, his heirs, or assigns, the publisher of such recreated work has a copyright consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work.

If the recreated art is not really similar in its form such that it may show only a motif of it, therefore such recreated work is simply a modified one. Then, such recreated work is a completely new recreation. Therefore, it is not a derivative work even if there are changes in the melody and chord progressions in the newly created art work.

 The one who created the remix is simply changing such original work which is not so significant, it may be by the use of an instrument and/or tempo. This type of art is not really a derivative work and such recreated art work may be protected by copyright law.

 The Creative Commons is a non-for-profit organization that was organized in order that the sharing and using of creativity and knowledge may be exploited by way of free legal tools. They are promoted through a website in order that artists can share their recreated art work with other artists by enabling these artists the possibility of   sharing, using, and/or creating a new work with the permission of the Creative Commons license. The creator of a new work can limit the copyright to particular users for whatever purpose which is specifically allowed, and further protect other   artist or other people who may exploit such work.

The exclusive rights of the copyright owner with regards to reproducing/copying, communicating, adaptation and performing such art work may be done but only with license. 

The very possibility of reducing the infringement of a copyrighted art work is thus manifested.

 Remixes usually create several legal issues especially when the whole or a substantive portion of an original art work is reproduced, copied, communicated, adapted or performed without authority.

The permit to exploit another person’s creation must be solicited first before this can be released to the public.

 Creative Commons license gives the grantee a fair use.  The license is required by law in order that a person may be allowed by the copyright owner of a work.

 The law always takes into account the substantive portion by considering the quality of the art work in contrast to quantity and the relation of that portion taken into effect as related to the work taken into account as whole.

The copyright law takes cognizance of this remix type of work

The copyright law permits the  recreation  of  a copyrighted art work without the authority of the licensee  but only to those  derivative work of art that  do not have much impact on the work in its original form and without much economic effect to the public in the highlight of the original owner of the work of art.

Derivative work of art which has no substantive commercial impact does not necessarily compete in the public view as regards to  the original work of art and should be protected by copyright law.

The sharing of creativity must be regulated by law because works of art are part of culture and that these art works are digital in nature and can be recreated.

The Philippine copyright law provides that there must be permission of the original owner of the work of art. There is suggested of the authority of owner of the copyrightable creation in the production of mashups or remixing.

 Lessig suggests that the key to mashups and remix is by educating and not legislating.  In other words it is on what can be done with technology, and then the copyright law  is there to regulate.

Professor Lessig  believes that establishments  such as mashup guilds  which are making the practice of survey and  publishing  the reports in order to formulate the norm or to reasonable behaviors  in the public mind’s acceptance as to what could be beneficial in the promotion of the limits of fair use.

 Professor Lessig suggests that Creative Commons and other licenses, such as the General Public License have been suggestive of mashup and remix in which the recreators may minimize the illegalities of such acts.

The Philippine law on fair use protects the public by giving ample protection on the creation and recreation of copyrighted work of art and eliminating the express authority of the original author provided that the copyrighted work of art is used and regulated by our government.

The work of art necessarily falls under fair use which may differ on how the  original material is exploited and by the very nature of its creation, and for whatever purpose of that portion of the copyright work of art has a public effect

There is no basic difference between copyright  and the promotion of fair use as long as this is regulated.  This applies also to creations such as remix.         

 The work of art of the one making the remix must be necessarily new.  It transforms the original work of art. The purpose of which is not to gain profit.  Philippine copyright laws protect the created work and the recreated work in as much as it does not violate the moral and economic rights of the original owner.

What distinguishes the recreated work of art is that it transforms the original work of art as a remix and that it does not breach substantially the original art work and that it is promoted for fair use within the ambit of the Philippine copyright law.

There is no clear violation of the Philippine copyright law as long as its use is within legal fair use.

Suppose in a sponsored sporting event, e. g. FIBA, if the event is sponsored by Brand A, and a non-sponsor brand gives out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure, what is your stand?

Question:   This relates to the use of competing trademarks .

Suppose in a sponsored sporting event, e. g. FIBA, if the event is sponsored by Brand A, and a non-sponsor brand gives out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure, what is your stand?

The fundamental law on trademark, infringement, and unfair competition is Republic Act (R.A.) No. 8293.  Section 155 of R.A. No. 8293 provides for the remedies for the infringement which is committed by any person who shall, without the consent of the owner of the registered mark use in commerce by  advertising  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 any person.

The act of 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  is subject to civil damages for such act by any person  when such infringement is committed regardless of whether there is actual sale of goods or services using the infringing goods or service.

The substantial element of infringement under R.A. No. 8293 is that the trademark is likely to cause confusion. In determining whether it is analogous and its  likelihood of confusion, the Supreme Court uses the  Dominancy Test and the Holistic or Totality Test.

The Dominancy Test places significance on the similarity of the prevalent or dominant features of the competing trademarks which causes confusion, mistake, and deception in the mind of the purchasing public.

Duplication or imitation need not be proven.  There is no need also that     the  trademark is a  registered trademark. As long as there is a suggestion or an effort to imitate.

What is given emphasis is the aural and visual impressions of the trade marks on the buyers of goods.  Prices, quality, sales outlets, and market segments are not important.

The Holistic or Totality Test focuses on the entirety of the trademarks in relation to the product, its label and packaging to determine  the confusing similarity.

What is focused is that which is not only on the predominant words, it also includes on other features appearing on both labels so that the public draw such conclusion on whether such trademark  is confusingly similar to the other.

There are two types of confusion:

Confusion of goods (product confusion).
This happens when the ordinarily prudent purchaser is  induced to purchase one product in the belief that he was purchasing the other; and

Confusion of business (source or origin confusion).
This happens when although the goods of the parties are different, the product, the mark of which registration is applied for by one party, is such as might reasonably be assumed to originate with the registrant of an earlier product, and the public would then be deceived either into that belief or into the belief that there is some connection between the two parties, though inexistent.


In the Holistic or Totality Test, the non-sponsoring brand  infringes on BrandA.  Even if the non-sponsoring Brand  did not imitate Brand A, the fact that FIBA was sponsored by Brand A, the public is made to believe that the non-sponsoring brand and Brand A  are of the same source and that the public may tend to believe that both brands are sponsoring the same sporting event as not all  men in their right minds would bother to ask what brand is sponsoring such event.

Thus, the act of the non-sponsor brand giving out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure already constitutes infringement under the Holistic or Totality Test.

The likelihood of confusion is that the attending public in FIBA  will associate the Brand A with the non-sponsoring brand .

In applying the Holistic Test,  there might be dissimilarities between the appearances of  Brand A and the non-sponsoring brand but such dissimilarities do not outweigh the blatant act of the non-sponsor brand giving out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure.

In applying the holistic test,  although there was no act of  imitating Brand A by the non-sponsoring brand , the dissimilarities between Brand A and the non-sponsoring brand are not significant that such dissimilarity will cause confusion and mistake in the eyes of the public.

It is the act of giving out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure, such act constitutes infringement.

In Converse Rubber Corporation v. Jacinto Rubber & Plastic Co., Inc.,  in a case for unfair competition, even if not all the details are identical, as long as the general appearance of the two products are such that any ordinary purchaser would be deceived, the imitator should be liable.

The act of the non-sponsor brand giving out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure deceives any ordinary person that Brand A and non-sponsoring brand come from the same source as the fact that FIBA was sponsored by Brand A.  

This is  more than sufficient to serve as basis for unfair competition.

Even if Brand A and the non-sponsoring brand were not identical, the act of the non-sponsor brand giving out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure,  any ordinary or the not too perceptive and discriminating customer could be deceived, and, therefore, and could easily be passed off for as Brand A.

The non-sponsoring brand is guilty of unfair competition.

Section 23 of R.A. No. 166 provides that any person entitled to the exclusive use of a registered mark or trade name may recover damages in a civil action from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, had the defendant not infringed his said rights or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty the court may award as damages reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party.

In cases where actual intent to mislead the public or to defraud the complaining party shall be shown, in the discretion of the court, the damages may be doubled.

The complaining party, upon proper showing may also be granted injunction.

In McDonald’s Corporation v. L.C. Big Mak Burger. Inc., the Court stated that modern law recognizes that the protection to which the owner of a trademark is entitled is not limited to guarding his goods or business from actual market competition with identical or similar products of the parties, but extends to all cases in which the use by a junior appropriator of a trade-mark or trade-name is likely to lead to a confusion of source, as where prospective purchasers would be misled into thinking that the complaining party has extended his business into the field or is in any way connected with the activities of the infringer; or when it forestalls the normal potential expansion of his business.

The act of the non-sponsor brand giving out tickes to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure leads  to a confusion of source, as where prospective purchasers would be misled into thinking that Brand A  has extended his business into the field or is in any way connected with the activities of the non-sponsoring brand; or when it forestalls the normal potential expansion of the business of the non-sponsoring brand.

The purchasing public might commit a mistake  that Brand A is associated or connected with the non-sponsoring brand.

The purpose of protecting  the  trademarks as intellectual property is to preserve the goodwill and reputation of the business established on the goods bearing the mark through actual use over a period of time, but also to safeguard the public as consumers against confusion on these goods.
  
The Supreme Court held in the case of SKECHERS, U.S.A., INC., vs. INTER PACIFIC INDUSTRIAL TRADING CORP. : The most successful form of copying is to employ enough points of similarity to confuse the public, with enough points of difference to confuse the courts.

In SUPERIOR COMMERCIAL ENTERPRISES, INC., vs. KUNNAN ENTERPRISES LTD. AND SPORTS CONCEPT & DISTRIBUTOR, INC., the Court held that to establish trademark infringement, the following elements must be proven:
(1) the validity of plaintiff’s mark;
(2) the plaintiff’s ownership of the mark; and
(3) the use of the mark or its colorable imitation by the alleged infringer results in "likelihood of confusion.”

The similarity and resemblance or lack of the same between Brand A and the non-sponsoring brand can be best appreciated by examining the same as they appear in the sporting event.

Unfair competition is the passing off (or palming off) or attempting to pass off upon the public of the goods or business of one person as the goods or business of another with the end and probable effect of deceiving the public.

The essential elements of unfair competition are:
 (1) confusing similarity in the general appearance of the goods; and
 (2) intent to deceive the public and defraud a competitor.

The "true test" of unfair competition is whether the acts of the defendant have the intent of deceiving or are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions of the particular trade to which the controversy relates.

One of the essential requisites in an action to restrain unfair competition is proof of fraud; the intent to deceive, actual or probable must be shown before the right to recover can exist.
  
The act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  constitutes unfair competition because such act of the non-sponsoring brand has the intent of deceiving or is  calculated to deceive the public  under the ordinary conditions of the particular trade to which the controversy relates.   

One of the essential requisites in an action to restrain unfair competition is proof of fraud; the intent to deceive, actual or probable must be shown before the right to recover can exist.

In this case the proof of fraud or the intent to deceive by the non-sponsoring brand   is actual and is  shown, hence there is a  right to recover damages by Brand A.

In United States vs. Manuel (7 Phil. Rep., 221), the Court held that the true test of unfair competition is whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care, and not whether a certain limited class of purchasers with special knowledge not possessed by the ordinary purchaser could avoid mistake by the exercise of this special knowledge.

    The act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  constitutes unfair competition because such act of the non-sponsoring brand hasbeen clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care, and not whether a certain limited class of purchasers with special knowledge not possessed by the ordinary purchaser could avoid mistake by the exercise of this special knowledge, that Brand A and the non-sponsoring brand comes from the same source.

In Alhambra Cigar, etc., Co. vs. Mojica (27 Phil. Rep., 266) the Court stated that even if the resemblance is accidental and not intentional, plaintiff is entitled to protection against its injurious results to his trade.

If the act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure, Brand A  is entitled to protection against the  injurious results to his trade as a consequence of the act of the non-sponsor brand.

In the case of R. F. & J. ALEXANDER & CO., LTD., and KER & CO., LTD.   vs.  SY BOK,  the Court stated that  in unfair competition, while the requisite degree of resemblance or similarity between the names, brands, or other indicia is not capable of exact definition, it may be stated generally that the similarity must be such, but need only be such, as is likely to mislead purchasers of ordinary caution and prudence, or in other words, the ordinary buyer, into the belief that the goods or wares are those, or that the name or business is that, of another producer or tradesman.

 It is not necessary in either case that the resemblance be sufficient to deceive experts, dealers, or other persons specially familiar with the trademark or goods involved. Nor is it material that a critical inspection and comparison would disclose differences, or that persons seeing the trademarks or articles side by side would not be deceived.

The act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  constitutes unfair competition because such act of the non-sponsoring brand  is likely to mislead purchasers of ordinary caution and prudence, or in other words, the ordinary buyer, into the belief that the non-sponsoring brand are those, or that the name or business is that, of Brand A.

It is not necessary in either case that the resemblance be sufficient to deceive experts, dealers, or other persons specially familiar with the trademark or goods involved. Nor is it material that a critical inspection and comparison would disclose differences, or that persons seeing the trademarks or articles side by side would not be deceived.

In the case of  ALHAMBRA CIGAR AND CIGARETTE MANUFACTURING CO  vs. PEDRO N. MOJICA, the Court held that  unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person as and for the goods or business of another.

 It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect.

It may be stated broadly that any conduct the end and probable effect of which is to deceive the public or pass off the goods or business of one person as and for that of another, constitutes actionable unfair competition.

Unfair competition, as thus defined, is a legal wrong for which the courts afford a remedy. It is a tort and a fraud.

The basic principle is that no one has a right to dress up his goods or otherwise represent them in such a manner as to deceive an intending purchaser and induce him to believe he is buying the goods of another.

Protection against unfair competition is not intended to create or foster a monopoly and the court should always be careful not to interfere with free and fair competition, but should confine itself, rather, to preventing fraud and imposition resulting from some real resemblance in made or dress of goods.

Nothing less than conduct tending to pass off one man's goods or business as that of another will constitute unfair competition.

The act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  constitutes as passing off or attempting to pass off upon the public the goods or business of Brand A.

There is actual or probable deception and confusion suffered by  the public in Brand A by the act of the non-sponsoring brand in the act of giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  of the non-sponsoring brand.

Relief against unfair competition is properly afforded upon the ground that one who has built up a good will and reputation for his goods or business is entitled to all the benefits therefrom.

Such good will is property and, like other property, is protected against invasion.

Deception of the public injures the proprietor of the business by diverting his customers and depriving him of sales which he otherwise would have made.

A demand for goods created belongs to the advertiser and he will be protected therein against unfair competition by another who seeks in any way to take advantage of such advertisements to sell his own goods.

In order to make it a case of unfair competition it is not necessary to show that any person has been actually deceived by the non-sponsoring brand’s conduct and lead to purchase his goods in the belief that they are the goods of Brand A, or to deal with the non-sponsoring brand  thinking that he was dealing with Brand A.

 It is sufficient and it showed  that there was  deception which is  the natural and probable result of the act of the non-sponsoring brand.

There is  actual or probable deception and confusion which is shown, and  there is  probability of deception. Thus, there is  unfair competition.

Purchasers may be deceived and misled into purchasing the goods of one person under the belief that they are purchasing the goods of another person whose goods they intended to buy although they do not know who is the actual proprietor of the genuine goods.

The purchasers of  the non-sponsoring brand may be deceived and misled into purchasing the goods of one person under the belief that they are purchasing the goods of Brand A whose goods they intended to buy although they do not know who is the actual proprietor of the genuine goods.

They are so deceived when they have in mind to purchased goods coming from a definite, although unknown, with which goods they are acquainted, although they neither know nor care who is the actual proprietor of such goods. the ultimate purchaser is the one in view and it is sufficient if he is liable to be deceived.

The non-sponsoring brand, by his conduct, passing off  his own goods at the same time with Brand A which is the sponsor in that sporting event which tend to deceive the public that these brands come from the same source.

The public is deceived.

A fraudulent intent on the part of the non-sponsoring brnd  to pass off his goods or business as or for that of Brand A constitutes unfair competition.

An actual fraudulent intent need not be shown where the necessary and probable tendency of the non-sponsoring brand’s conduct is to deceive the public and pass off his goods or business as and for that of Brand

Even if the resemblance is accidental and not intentional, Brand Ais entitled to protection against its injurious results to his trade.

In the case of SOCIETE DES PRODUITS NESTLE, S.A., vs. MARTIN T. DY, JR., the Court cited the case of  Mighty Corporation v. E. & J. Gallo Winery, the Court held that, "Non-competing goods may be those which, though they are not in actual competition, are so related to each other that it can reasonably be assumed that they originate from one manufacturer, in which case, confusion of business can arise out of the use of similar marks."

In that case, the Court enumerated factors in determining whether goods are related:

(1) classification of the goods;
(2) nature of the goods;
(3) descriptive properties, physical attributes or essential characteristics of the goods, with reference to their form, composition, texture or quality; and
(4) style of distribution and marketing of the goods, including how the goods are displayed and sold.

The act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  can reasonably be assumed that the non-sponoring brand and Brand A originate from one manufacturer, in which case, confusion of business can arise out of the such sporting event.

In the case of MIGHTY CORPORATION and LA CAMPANA FABRICA DE TABACO, INC.,  vs. E. & J. GALLO WINERY and THE ANDRESONS GROUP, INC., the Court held that  a person shall not be permitted to misrepresent his goods or his business as the goods or business of another, the law on unfair competition is broader and more inclusive than the law on trademark infringement. The latter is more limited but it recognizes a more exclusive right derived from the trademark adoption and registration by the person whose goods or business is first associated with it.

Hence, even if one fails to establish his exclusive property right to a trademark, he may still obtain relief on the ground of his competitor’s unfairness or fraud. Conduct constitutes unfair competition if the effect is to pass off on the public the goods of one man as the goods of another. It is not necessary that any particular means should be used to this end.

The act of the non-sponsor brand in giving out tickets to such event, with the recipients of such tickets are expected to wear the brand (trademark or tradename ) for brand exposure  constitutes unfair competition, in which case, Brand A can obtain relief on the ground of his competitor’s unfairness or fraud. The conduct of the non-sponsoring brand constitutes unfair competition because it has the effect as to pass off on the public the goods of Brand A as the goods of the non-sponsoring brand. It is not necessary that any particular means should be used to this end.

In Del Monte Corporation vs. Court of Appeals,  the Court distinguishes  trademark infringement from unfair competition:
(1) Infringement of trademark is the unauthorized use of a trademark, whereas unfair competition is the passing off of one's goods as those of another.
(2) In infringement of trademark fraudulent intent is unnecessary, whereas in unfair competition fraudulent intent is essential.
(3) In infringement of trademark the prior registration of the trademark is a prerequisite to the action, whereas in unfair competition registration is not necessary.

    In Article 6bis of the Paris Convention, the following are the elements of trademark infringement:
(a) registration or use by another person of a trademark which is a reproduction, imitation or translation liable to create confusion,
(b) of a mark considered by the competent authority of the country of registration or use48 to be well-known in that country and is already the mark of a person entitled to the benefits of the Paris Convention, and
(c) such trademark is used for identical or similar goods.

Section 22 of the Trademark Law holds a person liable for infringement when, among others, he "uses without the consent of the registrant, any reproduction, counterfeit, copy or colorable imitation of any registered mark or tradename in connection with the sale, offering for sale, or advertising of any goods, business or services or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others as to the source or origin of such goods or services, or identity of such business; or reproduce, counterfeit, copy or colorably imitate any such mark or tradename and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services."49 Trademark registration and actual use are material to the complaining party’s cause of action.

Under Sections 2, 2-A, 9-A, 20 and 22 of the Trademark Law ,  the following constitute the elements of trademark infringement:
(a) a trademark actually used in commerce in the Philippines and registered in the principal register of the Philippine Patent Office
(b) is used by another person in connection with the sale, offering for sale, or advertising of any goods, business or services or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others as to the source or origin of such goods or services, or identity of such business; or such trademark is reproduced, counterfeited, copied or colorably imitated by another person and such reproduction, counterfeit, copy or colorable imitation is applied to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services as to likely cause confusion or mistake or to deceive purchasers,
(c) the trademark is used for identical or similar goods, and
(d) such act is done without the consent of the trademark registrant or assignee.

In summary, the Paris Convention protects well-known trademarks only (to be determined by domestic authorities), while the Trademark Law protects all trademarks, whether well-known or not, provided that they have been registered and are in actual commercial use in the Philippines.

Following universal acquiescence and comity, in case of domestic legal disputes on any conflicting provisions between the Paris Convention (which is an international agreement) and the Trademark law (which is a municipal law) the latter will prevail.54

Under both the Paris Convention and the Trademark Law, the protection of a registered trademark is limited only to goods identical or similar to those in respect of which such trademark is registered and only when there is likelihood of confusion. Under both laws, the time element in commencing infringement cases is material in ascertaining the registrant’s express or implied consent to another’s use of its trademark or a colorable imitation thereof. This is why acquiescence, estoppel or laches may defeat the registrant’s otherwise valid cause of action.

Hence, proof of all the elements of trademark infringement is a condition precedent to any finding of liability.

The actual use in commerce or business is a prerequisite in the acquisition of the right of ownership over a trademark.

Section 20 of the Trademark Law and Article 6bis of the Paris Convention which proscribe trademark infringement not only of goods specified in the certificate of registration but also of identical or similar goods, we have also uniformly recognized and applied the modern concept of "related goods."91

Simply stated, when goods are so related that the public may be, or is actually, deceived and misled that they come from the same maker or manufacturer, trademark infringement occurs.92

Non-competing goods may be those which, though they are not in actual competition, are so related to each other that it can reasonably be assumed that they originate from one manufacturer, in which case, confusion of business can arise out of the use of similar marks.93 They may also be those which, being entirely unrelated, cannot be assumed to have a common source; hence, there is no confusion of business, even though similar marks are used.94 Thus, there is no trademark infringement if the public does not expect the plaintiff to make or sell the same class of goods as those made or sold by the defendant.95

In resolving whether goods are related,96 several factors come into play:
(a) the business (and its location) to which the goods belong
(b) the class of product to which the goods belong
(c) the product's quality, quantity, or size, including the nature of the package, wrapper or container 97
(d) the nature and cost of the articles98
(e) the descriptive properties, physical attributes or essential characteristics with reference to their form, composition, texture or quality
(f) the purpose of the goods99
(g) whether the article is bought for immediate consumption,100 that is, day-to-day household items101
(h) the fields of manufacture102
(i) the conditions under which the article is usually purchased103 and
(j) the channels of trade through which the goods flow,104 how they are distributed, marketed, displayed and sold.105

Whether there exists a likelihood that an appreciable number of ordinarily prudent purchasers will be misled, or simply confused, as to the source of the goods in question.108 The "purchaser" is not the "completely unwary consumer" but is the "ordinarily intelligent buyer" considering the type of product involved.109 He is "accustomed to buy, and therefore to some extent familiar with, the goods in question.

The test of fraudulent simulation is to be found in the likelihood of the deception of some persons in some measure acquainted with an established design and desirous of purchasing the commodity with which that design has been associated. The test is not found in the deception, or the possibility of deception, of the person who knows nothing about the design which has been counterfeited, and who must be indifferent between that and the other. The simulation, in order to be objectionable, must be such as appears likely to mislead the ordinary intelligent buyer who has a need to supply and is familiar with the article that he seeks to purchase."










ENDNOTE REFERNCES:

SKECHERS, U.S.A., INC., Petitioner,  vs. INTER PACIFIC INDUSTRIAL TRADING CORP., and/or INTER PACIFIC TRADING CORP. and/or STRONG SPORTS GEAR CO., LTD., and/or STRONGSHOES WAREHOUSE and/or STRONG FASHION SHOES TRADING and/or TAN TUAN HONG and/or VIOLETA T. MAGAYAGA and/or JEFFREY R. MORALES and/or any of its other proprietor/s, directors, officers, employees and/or occupants of its premises located at S-7, Ed & Joe's Commercial Arcade, No. 153 Quirino Avenue, Parañaque City, Respondents.
TRENDWORKS INTERNATIONAL CORPORATION, Petitioner-Intervenor,  vs. INTER PACIFIC INDUSTRIAL TRADING CORP. and/or INTER PACIFIC TRADING CORP. and/or STRONG SPORTS GEAR CO., LTD., and/or STRONGSHOES WAREHOUSE and/or STRONG FASHION SHOES TRADING and/or TAN TUAN HONG and/or VIOLETA T. MAGAYAGA and/or JEFFREY R. MORALES and/or any of its other proprietor/s, directors, officers, employees and/or occupants of its premises located at S-7, Ed & Joe's Commercial Arcade, No. 153 Quirino Avenue, Parañaque City, Respondents.

Converse Rubber Corporation v. Jacinto Rubber & Plastic Co., Inc.

Section 23 of R.A. No. 166 provides:
Sec. 23. Actions and damages and injunction for infringement. — Any person entitled to the exclusive use of a registered mark or trade name may recover damages in a civil action from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, had the defendant not infringed his said rights or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty the court may award as damages reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party. In cases where actual intent to mislead the public or to defraud the complaining party shall be shown, in the discretion of the court, the damages may be doubled.
The complaining party, upon proper showing may also be granted injunction.

McDonald’s Corporation v. L.C. Big Mak Burger. Inc.,

G.R. No. 169974               April 20, 2010
SUPERIOR COMMERCIAL ENTERPRISES, INC., Petitioner,  vs. KUNNAN ENTERPRISES LTD. AND SPORTS CONCEPT & DISTRIBUTOR, INC., Respondents.
G.R. No. L-10738            January 14, 1916
RUEDA HERMANOS & CO., plaintiff-appellant,  vs. FELIX PAGLINAWAN & CO., defendant-appellant.

United States vs. Manuel (7 Phil. Rep., 221),

Alhambra Cigar, etc., Co. vs. Mojica (27 Phil. Rep., 266)

G.R. No. L-6707             May 31, 1955
R. F. & J. ALEXANDER & CO., LTD., and KER & Co., LTD., petitioner,  vs. JOSE ANG, doing business under the name and style of "Hua Hing Trading", respondent.
G.R. No. L-6708             May 31, 1955
R. F. & J. ALEXANDER & CO., LTD., and KER & CO., LTD. petitioners  vs.
SY BOK, doing business under the name and style of "China Rose", respondent.

52 American Jurisprudence pp. 600-601

G.R. No. L-8937            March 21, 1914
ALHAMBRA CIGAR AND CIGARETTE MANUFACTURING CO., plaintiff-appellee,  vs. PEDRO N. MOJICA, defendant-appellant.

G.R. No. 172276               August 8, 2010
SOCIETE DES PRODUITS NESTLE, S.A., Petitioner,  vs. MARTIN T. DY, JR., Respondent.

Mighty Corporation v. E. & J. Gallo Winery

G.R. No. 154342             July 14, 2004
MIGHTY CORPORATION and LA CAMPANA FABRICA DE TABACO, INC., petitioner,  vs. E. & J. GALLO WINERY and THE ANDRESONS GROUP, INC., respondent


Section 22 of the Trademark Law holds a person liable for infringement when, among others, he "uses without the consent of the registrant, any reproduction, counterfeit, copy or colorable imitation of any registered mark or tradename in connection with the sale, offering for sale, or advertising of any goods, business or services or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others as to the source or origin of such goods or services, or identity of such business; or reproduce, counterfeit, copy or colorably imitate any such mark or tradename and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services."49 Trademark registration and actual use are material to the complaining party’s cause of action.

Is the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered a violation of RA 10173?

"Is the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered a violation of RA 10173?" 

No, the act of a person A, disclosing the mobile number of B to a third person, without  B’s consent , is not considered a violation of RA 10173.

RA 10173, otherwise known as  "Data Privacy Act of 2012″ , which was approved on August 15, 2012 by Benigno S. Aquino III, President of the Republic of the Philippines, provides for protection on individual personal information and communication system in the government and private sector.

This is in line with the policy of the State to protect the fundamental right of privacy, and of communication for the free flow of information of the public  It is likewise intended to promote innovation and growth of the society as a whole.  Information and communications technology is vital in nation-building.  In achieving security and protection on the personal information in information and communication systems in the government and in the private sector, RA 10173 comes into being.

RA 10173 specifically defines personal information.  “Section 3. (g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.” 

Is the mobile number of B a personal information as defined in RA 10173 Section 3?

Varied opinions may trigger wide and explosive discussions on this query.

Was the mobile number of B apparently or reasonably and directly ascertain the entity holding that information?

Was the mobile number of B when assessing altogether the information would directly and certainly identify an individual?

These questions can put to a test whether or not the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent constitute a culpable violation of RA 10173.

Was the consent of B  necessary in order that anyone can disclose B’s mobile number?

RA 10173 Section 3 further defines consent of the subject data.  RA 10173 Section 3 “(b) Consent of the data subject refers to any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.”

RA 10173 Section 3 also defines Data subject . RA 10173 Section 3 “(c) Data subject refers to an individual whose personal information is processed.”

We may ask now, was the mobile number of B freely given to A which was specific and informed indication of will?

Another very important aspect of query is that , is B considered as  data subject as defined under RA 10173.

Why all of these too many questions?

If B and all its surrounding circumstances  negate the afore-mentioned questions , necessarily , all the attending information does not fall within the purview of RA 10173.

Does the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered as privileged communication?

RA 10173 Section 3 also defines privileged communication . RA 10173 Section 3 “(k) Privileged information refers to any and all forms of data which under the Rules of Court and other pertinent laws constitute privileged communication.”

In THE UNITED STATES vs. SIMEON CAÑETE, ET AL., the Court held that the doctrine of privileged communications rests upon public policy.,

There are  instances which afford an immunity to the evil-disposed and malignant slander.

  Privilege is either absolute or qualified. Qualified privilege suggests  a prima facie privilege which may be lost by proof of malice. 

Communications which are  bona fide upon any subject matter in which the party communicating has an interest even if  it contained criminatory matter which without this privilege is slanderous and actionable.

An example of a qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. 

Statements that are false, when there is probable cause to believe for its  truthfulness while the charge is made in good faith,  the clout of  privilege encompasses  the mistake of the individual.

Statements which have been made under an honest sense of duty; any person having an ill motive is destructive. Personal injury is not necessary. 

In this case, if A is a public official when addressing to an officer B, would there be probable cause if the mobile number shared to a third person, was made in good faith?

Is the mobile number a sensitive information as defined under RA 10173?

RA 10173 Section 3 also defines sensitive information . 

In this case, the mobile number was not specifically enumerated in  RA 10173 Section 3. The personal information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations does not include mobile number.

The second paragraph of  RA 10173 Section 3 provides  individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings.

The third paragraph relates to  that which is ssued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns.

The fourth paragraph points to that which are specifically established by an executive order or an act of Congress to be kept classified.”

RA 10173 Section 3 also provides for the scope of the law.

  The law applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines. 

The law  does not apply to information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual.

Further,  the law does not  title, business address and office telephone number of the individual.

Moreover, the law does not include the classification, salary range and responsibilities of the position held by the individual.

 The name of the individual on a document prepared by the individual in the course of employment with the government is not also included.

The Law specifically excludes information about  any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit.

Personal information processed for journalistic, artistic, literary or research purposes.

RA 10173 excludes information necessary in order to carry out the functions of public authority as well as the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. 

  Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines are explicitly excluded.

RA 10173  specifically provides under Section 38 with regards to  interpretation which states that any doubt in the interpretation of any provision of the law shall be liberally interpreted in a manner mindful of the rights and interests of the individual about whom personal information is processed.

The question is that : is the mobile number of A one of those information processed as enunciated under the Data Privacy Act?

"Is the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered as Unauthorized Disclosure under Section 32 of RA 10173  ?

Is the mobile number of B considered as any personal information  as defined in Section 31 of  RA 10173  as disclosed to a third party personal information  tenable as Malicious Disclosure for it was done with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information?

Is the act of A falls within the purview of RA 10173  Section 29. Unauthorized Access or Intentional Breach?

Is the act of A considered as  knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored under RA 10173  Section 29?

Is the act of A covered under RA 10173  Section 28 Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes?

Is the act of A an act of  processing of personal information for unauthorized purposes 

Is the act of A concstitute as an act punishable under RA 10173  Section 27. Improper Disposal of Personal Information and Sensitive Personal Information?

Is the act of A an  improper disposal of personal information which  be penalized for knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.?

Is the act of A punishable under RA 10173 Section 26. Accessing Personal Information and Sensitive Personal Information Due to Negligence?

 Is the act of A relates to accessing personal information due to negligence provided access to personal information without being authorized under this Act or any existing law.

Is the act of A punishable under RA 10173 Section 25. Unauthorized Processing of Personal Information and Sensitive Personal Information.?

Is the act of A covered under unauthorized processing of personal information without the consent of the data subject, or without being authorized under this Act or any existing law?

Is the act of A punishable under RA 10173 Section 24. Applicability to Government Contractors?

Is the act of A , an act as  entering into any contract that may involve accessing or requiring sensitive personal information that requires  a contractor and its employees to register their personal information processing system with the Commission in accordance with this Act and to comply with the other provisions of this Act including the immediately preceding section, in the same manner as agencies and government employees comply with such requirements?

Can RA 10173  Section 17. Transmissibility of Rights of the Data Subject. Be used as cloak of protection by A?

Is A one of the lawful heirs and assigns of the data subject who can  invoke the rights of the data subject for, which he or she is an heir or assignee at any time after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights ?

Is B covered under RA 10173  Section 16. Rights of the Data Subject.?

Is  B a data subject who  is entitled to b e informed whether personal information pertaining to him or her shall be, are being or have been processed or be furnished the information before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity or that  the description of the personal information to be entered into the system .

Is  B entitled to the purposes for which they are being or are to be processed and  to the scope and method of the personal information processing or to that the recipients or classes of recipients to whom they are or may be disclosed?

Can B legally claim that the methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized or that  the identity and contact details of the personal information controller or its representative?

Can B hold that  the period for which the information will be stored; and the existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.

Can B claim that any information supplied or declaration made to the data subject on these matters shall not be amended without prior notification of data subject: Provided, That the notification under subsection (b) shall not apply should the personal information be needed pursuant to a subpoena or when the collection and processing are for obvious purposes, including when it is necessary for the performance of or in relation to a contract or service or when necessary or desirable in the context of an employer-employee relationship, between the collector and the data subject, or when the information is being collected and processed as a result of legal obligation?

Is B entitled to the reasonable access to, upon demand, the following:

(1) Contents of his or her personal information that were processed;

(2) Sources from which personal information were obtained;

(3) Names and addresses of recipients of the personal information;

(4) Manner by which such data were processed;

(5) Reasons for the disclosure of the personal information to recipients;

(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;

(7) Date when his or her personal information concerning the data subject were last accessed and modified; and

(8) The designation, or name or identity and address of the personal information controller;

(d) Dispute the inaccuracy or error in the personal information and have the personal information ?

Can B  be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

Under the rules on statutory  construction, what the law does not include is deemed excluded 

Further, what the law excludes are deemed not included.

Endnote References:

RA 10173 Section 3” (l) Sensitive personal information refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.”

In THE UNITED STATES vs. SIMEON CAÑETE, ET AL., the Court held that: 

“In the case of the United States vs. Bustos (37 Phil. Rep., 731), in which the defendants were charged with libel of a public official for statements made in a petition for his removal addressed to his administrative superior, Mr. Justice Malcolm, writing the opinion of the court, said:

Public policy, the welfare of society, and the orderly administration of government, have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.

"The doctrine of privileged communications rests upon public policy, which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slander." (Abbot vs. National Bank of Commerce, Tacoma [1899], 175 U.S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus states by Lord Campbell, C.J.

"A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable." (Harrison vs.Bush, 5 E.& B., 334; 1 Jur. [N. S.], 846; 25 L. J. Q. B., 25 W. R., 474; 85 E. C. L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroys that presumption. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3 How. 266.)

A privileged communication should not be subject to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides.

It is true that the communication in the Bustos case (supra) was addressed to a government official, but the American and British courts have extended the qualified privilege by analogy to include cases like the present, in which a member of a church makes a complaint regarding his minister to their common ecclesiastical superior.