Publicity Isn'T Really Public (Midterm Paper in Intellectual Property Law)
Publicity Isn'T Really Public (Midterm Paper in Intellectual Property Law)
Publicity Isn'T Really Public (Midterm Paper in Intellectual Property Law)
TO:
ATTY. GLORIA ANASTASHA LASAM-AQUINO
PROFESSOR, CSU LAW
BY:
KRISTEL MAE J. BUNAGAN
18-01692
I. INTRODUCTION
With strong conviction, I humbly submit that the use of the name, image or
likeness of a famous person or key persona is used for commercial purposes
without his/her consent is illegal based on the following dispositions, to wit:
1. The Right of Publicity in the Philippines is borrowed from the Lanham Act or
the Trademark Law of the United States. This was first introduced in the case
of Fredco vs. President and Fellows of Harvard College (Harvard
University)3 where the Supreme Court held that: “Section 4(a) of R.A. No. 166
is identical to Section 2(a) of the Lanham Act, the trademark law of the United
States. These provisions are intended to protect the right of publicity of
famous individuals and institutions from commercial exploitation of their
goodwill by others. What Fredco has done in using the mark "Harvard" and
the words "Cambridge, Massachusetts," "USA" to evoke a "desirable aura" to
its products is precisely to exploit commercially the goodwill of Harvard
University without the latter’s consent.”
In that case, the Supreme Court struck down a petition for cancellation of
registration filed by Fredco Manufacturing Corporation against Harvard
University alleging that the trade name “Harvard” has been first used by it for
its products. It was held that Fredco’s use of the mark “Harvard” coupled with
its claimed origin in Cambridge, Massachusetts, obviously suggest a false
connection with Harvard University. This act alone violates Section 4 (a) of
R.A. No. 166 which provides that:
Section 123(c) of the Intellectual Property Code4 provides for the protection
against use of the “name, portrait or signature identifying a particular
living individual except by his written consent, or the name, signature, or
portrait of a deceased President of the Philippines, during the life of his
widow, if any, except by the written consent of the widow.” (Emphasis mine).
This manifest that one cannot just use the name, portrait or signature of a
particular living individual for commercial purposes as it may have legal
consequences. Hence, one must not just use the name, image or likeness of a
person just because it carries advertising and marketing advantages. Every
individual is afforded the right to privacy which should not be trampled upon
even when one becomes the famous person in the world.