Business Identification and Identity: Legitimate Marks, Proper Labels and Brand Values

Due to the deluge of foreign labeled products for use in the war against COVID-19, the Food and Drug Authority of the Philippines (“FDA”) has recently issued warnings against improperly branded or mislabeled products. The reports inform the public that only English and Filipino are the acceptable language allowed to be used for product labels, in order for it to be understandable to Filipino consumers.i Because of the pandemic, the Philippines and the world has been introduced to products and brands we never previously imagined will become common household items and names. Nowadays, it is no longer unusual for a home to stock up on surgical masks, face shields, hand sanitizers and disinfectants, and even personal protective wear such as teddy suits and surgical gowns. Most of these new supplies are imported products and the ordinary person, not being a medical worker, would not be familiar with their brands. We do not really know which marks are from legitimate sources, which are reliable brands, which brands are properly registered. What are marks? Are they different from labels? What about brands? When setting up a business-- soon after a person thinks about the products or services to be offered to the clients, what the business systems and strategies will be, who will be invited as business partners, how much funding will be necessary, and all the details necessary for the business to sprout, survive and thrive-- there comes a point when the entrepreneur looks for the right mark or brand. The right mark or brand is something that appeals to the entrepreneur, and which he thinks also appeals to his clients and hope will draw in the clients to his business. He imagines the mark or brand on the product labels and on the business’ store front or service façade. Marks, brands and labels are often used interchangeably in ordinary conversation; however, they each have their own technical meanings, especially in the legal sense. A mark refers to “any visible sign capable of distinguishing the goods (trademarks) or services (service marks) of an enterprise and shall include a stamped or marked container of goods”.ii Labels, on the other hand, refer to “the display of written, printed or graphic matter on any consumer product, its immediate container, tag, literature or other suitable material affixed thereto for the purpose of giving information as to the identity, components, ingredients, attributes, directions for use, specifications, and such other information as may be required by law or regulations”.iii A brand, although historically derived from marks and labels, now encompasses more than just marks or labels, and has now evolved to embody the business identity.iv 2 The Business of Branding The word “brand” traces its roots to the proto-Germanic “brandaz” which refers to “a burning”.v It initially referred to a piece of burning wood and slowly evolved into a verb meaning “to mark permanently with a hot iron”.vi Branding has actually been practiced for around 4,000 years as a way to indicate ownership of livestock.vii Livestock branding has been traced to 2700 B.C. as seen from Ancient Egyptian hieroglyphics.viii In the 1400s, a French writer chronicled that horses for rent were branded to avert the temptation of stealing them.ix Branding or marking cattle with burning iron is strongly associated with cowboys and herdsmen of the wild west.x Branding has been the main method for livestock identification and proof of ownership.xi In the modern world, marks or brands are placed on labels and containers of products and façades of service establishments for purposes of identification. Recently, marks, labels and brands have evolved to perform more important roles in marketing products and services, and are now being used to establish and clarify business identity. Because of these added functions of marks, labels and brands, an entrepreneur will do well to take the following factors into consideration when choosing and setting up their brand strategy: Mark Legitimacy, Proper Labelling and Brand Values. Mark Legitimacy and Labelling Requirements Because of the proliferation of various brands and in order to cautiously use marks in the Philippines, they must be registered with the Intellectual Property Office (“IPO”). Although it is not illegal in the Philippines to use an unregistered mark for as long as said mark is not identical or confusingly similar to the marks of others, it is more prudent to have a mark examined and registered by the IPO as it gives the user a measure of protection since examination of the mark has been performed before the mark is allowed registration. Further, examination of the mark by the IPO includes checking if the mark is inherently registrable under the Philippine laws such that it complies with the requirements for and proscriptions against trademark registration. In addition to having a registered trademark that enables the public to distinguish the business of a person who owns the said trademark , compliance with compulsory labeling and fair packaging rules and regulations promulgated by government agencies such as the Department of Trade and Industry (“DTI”) and the Food and Drug Authority (“FDA”) is necessary so that consumers are given accurate information regarding the nature, quality and quantity of the contents of consumer products as well as to provide ease in comparison of price and value between similar products. Non-compliance with labeling and/or fair packaging rules and requirements will result in products being considered as misbranded or mislabeled, and the manufacture, importation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertising, or sponsorship of such misbranded products is prohibited under the FDA Act of 2009. In addition, non-compliance with the labeling and packaging rules may result in criminal liability.  Intellectual Property Office Requirements and Proscriptions A trademark or mark is a visible sign capable of distinguishing goods or services of an enterprise. A trademark also includes a stamped or marked container of goods.xii Trademark protection is acquired by registration. However, a mark cannot be registered if it:xiii 3 a. Consists of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute; b. Consists of the flag or coat of arms or other insignia of the Philippines or any of its political subdivisions, or of any foreign nation, or any simulation thereof; c. Consists of a 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 written consent of the widow; d. Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of: (i) The same goods or services, or (ii) Closely related goods or services, or (iii) If it nearly resembles such a mark as to be likely to deceive or cause confusion; e. Is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippinesxiv, whether or not it is registered here, as being already the mark of a person other than the applicant for registration, and used for identical or similar goods or services; f. Is identical with, or confusingly similar to, or constitutes a translation of a mark considered well-known and which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for, and that use of the mark in relation to those goods or services would indicate a connection between those goods or services, and the owner of the registered mark, and the interests of the owner of the registered mark are likely to be damaged; g. Is likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services; h. Consists exclusively of signs that are generic for the goods or services that they seek to identify; i. Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in bona fide and established trade practice; j. Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services; 4 k. Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value; l. Consists of color alone, unless defined by a given form; or m. Is contrary to public order or morality.  Labelling Requirements Under the Philippine Consumer Act, the Food Safety Act and the Food and Drug Administration Act In addition to the foregoing proscriptions under the IP Code, the compulsory labeling and fair packaging rules and regulations must also be complied with to allow a consumer to obtain accurate information with regard to the nature, quality and quantity of the contents of consumer products in order to facilitate the comparison of the value and costs of said products. Label or labeling is referred to as the display of written, printed or graphic matter on any consumer product, its immediate container, tag, literature or other suitable material affixed thereto for the purpose of giving information as to the identity, components, ingredients, attributes, directions for use, specifications and such other information as may be required by law or regulations. Under the Consumer Act of the Philippinesxv, all consumer products that are sold domestically must indicate the following in their respective labels of packaging: a. its correct and registered trade namexvi or brand name; b. its duly registered trademark; c. its duly registered business namexvii; d. the address of the manufacturer, importer, repacker of the consumer product in the Philippines; e. its general make or active ingredients; f. the net quality of contents, in terms of weight, measure or numerical count rounded of to at least the nearest tenths in the metric system; g. country of manufacture, if imported; and h. if a consumer product is manufactured, refilled or repacked under license from a principal, the label shall so state the fact. In addition to the minimum information enumerated above, the following information must also appear in the labeling and packaging of consumer goods:xviii a. country of manufacture; b. required information of consumption duration safety (i.e., good until December 2008); c. warranty of the manufacturer; 5 d. weight content prior to packaging; e. consumer complaint desk address; and f. all other information that fits the parameter of the consumers' right to information. Ärticle 77 of RA 7394 further requires that “[t]he information enumerated above must appear on the label or labeling of the consumer goods with such conspicuousness as compared with other words, statements, designs or devices therein, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase or use”. All manufacturers, distributors, importers or repackers of consumer products, whether the goods are imported or manufactured locally, must indicate in their labels or packaging a translation in English or Filipino pertaining to “the nature, quality, quantity and other relevant information or instructions of such consumer products in a manner that cannot be easily removed, detached or erased under ordinary handling thereof”.xix Further, the DTI and other relevant government agencies may provide for additional labeling and packaging requirements, especially with respect to food, drugs, cosmetics, devices, and hazardous substances. A counterfeit product is defined as “any consumer product which[,] or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, or device, or any likeness thereof, of a consumer product, manufacturer, processor, packer, distributor, other than the person or persons who in fact manufactured, processed, packed or distributed such product and which thereby falsely purports or is represented to be the product of, or to have been packed or distributed by such consumer product manufacturer, processor, packer, or distributor”.xx Misbranded products, on the other hand, refer to products that bear “misinformation or misleading information on the label or other information materials authorized by the FDA. It does not refer to copyright, trademark, or other intellectual property-like instruments”.xxi On the other hand, mislabeled products refer to consumer products whose label does not conform to the labeling and fair packaging rules and regulations under the Consumer Act of the Philippines. Nonconformity with labeling and packaging rules by any person, either as principal or as agent, shall be unlawful.xxii Discussed in further detail below are the rules and regulations in relation to the minimum labeling requirements of consumer goods in the Philippines. A. Labeling Requirements for Food Under the Food Safety Act of 2013, misbranding is defined as “deliberate labelling or advertising of food that is misleading, where the labelling and/or advertising claims certain food properties that cannot be supported by a reliable source, a certifying body or by scientific evidence”.xxiii In addition to the information that must appear on the label of consumer goods, the following additional information must appear in the labeling of food: a. “expiry or expiration date, where applicable; 6 b. whether the consumer product is semi-processed, fully processed, ready-to-cook, ready-to-eat, prepared food or just plain mixture; c. nutritive value, if any; d. whether the ingredients used are natural or synthetic; e. such other labeling requirements as the concerned department may deem necessary and reasonable.” xxiv Food is deemed to be mislabeled if the any of the following circumstances are present:xxv a. if its labeling is false or misleading in any particular; b. if it is offered for sale under the name of another food; c. if it is an imitation of another food, unless the label bears the word “imitation” and the name of the food imitated; d. if its container is so made, formed, or filled as to be misleading; e. if it is in package form unless it bears a label conforming to the requirements of RA 7394; reasonable variation on the requirements of labeling shall be permitted and exemptions as to small packages shall be established by the regulations prescribed by the concerned department; f. if any word, statement, or other information required by or under authority of th e Food, Drug and Cosmetics Act to appear on the label or labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs or devices in the labeling and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; g. if it purports to be or is represented as a food for which a definition and standard of identity has been prescribed unless: (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition or standards, and insofar as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and coloring) present in such food; h. if it purports to be or is represented as — (1) A food for which a standard of quality has been prescribed by regulations as provided by law, and its quality falls below such standard, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or 7 (2) a food for which a standard or standards of fill of container have been prescribed by regulations as provided by law and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, statement that if falls below such standard. i. if it is not subject to the provisions of paragraph (g) unless its label bears: (1) the common or usual name of the food, if there be any, and (2) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings and colorings without naming each. However, to the extent that compliance with the requirements of clause (2) is impracticable or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the Secretary of Health; j. if it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral and other dietary properties as the concerned department determines to be, or by regulations prescribed as necessary in order fully to inform purchasers as its value for such uses; k. If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact. Note that the provisions of this paragraph or paragraphs (g) and (i) with respect to the artificial coloring shall not apply in the case of butter, cheese or ice cream. B. Labeling Requirements for Drugs and Devices RA 7394 define Drugs as referring to the following:xxvi (1) articles recognized in the current official United States Pharmacopoeia National Formulary, official Homeopathic Pharmacopoeia of the United States, official National Drug Formulary, or any supplement to any of them; (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; (3) articles (other than food) intended to affect the structure or any function of the body of man or animals; (4) articles intended for use as a component of any articles specified in clauses (1), (2) or (3) but do not include devices or their components, parts or accessories. The term "drug" when used in the Consumer Act shall include herbal and/or traditional drugs, which are defined as articles from ingenuous plants or animal origin used in medicine which are:xxvii 8 (1) recognized in the Philippine National Formulary; (2) intended for use in the treatment or cure, mitigation of disease symptoms, injury or bodily defect for use in man; (3) other than food, intended to affect the structure of any function of the body of man; (4) put into finished, ready to use form by means of formulation, dosage or dosage directions; and (5) intended for use as a component of any of the articles specified in clauses (1), (2), (3), and (4) of this paragraph. On the other hand, a Device under the Consumer Act refers to “an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article including any component, part or accessory which is: (1) recognized in the official United States Pharmacopoeia-National Formulary (USP-NF) or any supplement to them; (2) intended for use in the diagnosis of disease or other condition or in the cure, mitigation, treatment or prevention of disease in man or other animals; or (3) intended to affect the structure or any function of the body of man or other animals, and which does not achieve any of its principal intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of any of its principal intended purposes.”xxviii A drug or device shall be deemed to be misbranded:xxix a. if its labeling is false or misleading in any particular; b. if in a package form unless it bears a label conforming to the requirements of the Consumer Act or the regulations promulgated therefor. Reasonable variations shall be permitted and exemptions as to small packages shall be established by regulations prescribed by the concerned department; c. if any word, statement, or other information that is required to appear on the label or labeling is not prominently placed thereon with such conspicuousness, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; d. if it is for use by man and contains any quantity of a narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marijuana, morphine, opium, paraldehyde, peyote or sulfonmethane, or any chemical derivative of such substance, which derivative has been designated by the concerned department after investigation, and by regulations, as habit forming; unless its label bears the name and quantity or proportion of such 9 substance or derivative and in juxtaposition therewith the statement "Warning – May be habit forming"; e. if its labeling does not bear: 1) adequate directions for use; and 2) such adequate warning against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users; f. if it purports to be a drug the name of which is recognized in an official compendium, unless it is packaged and labeled may be modified with the consent of the concerned department; g. If it has been found by the concerned department to be a drug liable to deterioration, unless it is packaged in such form and manner, and its label bears a statement of such precautions, as the concerned department shall by regulations require as necessary for the protection of the public health; h. if it is a drug and its container is so made, formed, or filled as to be misleading; or if it is an imitation of another drug; or if it is offered for sale under the name of another drug; i. if it is dangerous to health when used in the dosage, or with the frequency of duration prescribed, recommended or suggested in the labeling thereof; j. if it is, or purports to be, or is represented as a drug composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, bacitracin, or any other anti-biotic drug, or any derivative thereof, unless: 1) it is from a batch with respect to which a certificate of release has been issued pursuant to regulations of the concerned department; and 2) such certificate of release is in effect with respect to such drug: Note that this shall not apply to any drug or class of drugs exempted by regulations promulgated under authority of the Consumer Act. C. Labeling Requirements for Cosmetics Cosmetics refer to “articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance”, and articles “intended for use as a component of any such article”.xxx Soaps, however, are not included in the definition of cosmetics under the Consumer Act. In addition to the information that must appear on the label of consumer goods, the following additional information should appear in the labeling of cosmetics:xxxi a. expiry or expiration date; 10 b. whether or not it may be an irritant; c. precautions or contra-indications; and d. such other labeling requirements as the concerned department may deem necessary and reasonable. A cosmetic shall be deemed to be mislabeled:xxxii a. if its labeling is false or misleading in any particular; b. if in package form unless it bears a label conforming to the requirements of labeling provided for in the Consumer Act or under existing regulations. Reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the concerned department; c. if any word, statement, or other information required by or under authority of the Consumer Act, to appear on the label or labeling is not prominently placed thereon with such conspicuousness as compared with other words, statements, designs or devices in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; d. if its container is so made, formed, or filled as to be misleading; e. if its label does not state the common or usual name of its ingredients. D. Labeling Requirements for Hazardous Substances Hazardous substances as referred to in the Consumer Act pertain to:xxxiii (i) Any substance or mixture of substances which is toxic, corrosive, irritant, a strong sensitizer, flammable or combustible or generates pressure through decomposition, heat or other means, if such substance or mixture or substances may cause substantial injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable ingestion by children; (ii) Any other substance which the department finds to be under the categories enumerated in the preceding clause; (iii) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as package, the Department determines by regulation that the substance is sufficiently hazardous to require labeling in order to protect the public health; or (iv) Any toy or other articles intended for use by children which the director may, by regulation, determine the presence of an electrical, mechanical or thermal hazard. 11 The term ‘Hazardous Substances’ shall “not apply to food, drugs, cosmetics, and devices nor to substances intended for use as fuels when stored in containers and used in the heating, cooking or refrigeration system of a house”xxxiv. It shall apply to any article which is not in itself a pesticide but which is a hazardous substance, by reason of bearing or containing such harmful substances described therein.xxxv Under the Consumer Act, Hazardous Substances are deemed mislabeled when:xxxvi a. having been intended or packaged in a form suitable for use in households, especially for children, the packaging or labeling of which is in violation of the special packaging regulations issued by the concerned department; b. such substance fails to bear a label: 1. which states conspicuously: i. the name and the place of business of the manufacturer, packer, distributor or seller; ii. the common or usual name or the chemical name, if there be no common or usual name, of the hazardous substance or of each component which contributes substantially to the harmfulness of the substance, unless the concerned department by regulation permits or requires the use of the recognized generic name; iii. the signal word "danger" on substances which are extremely flammable, corrosive or highly toxic; iv. the signal word "warning" or "caution" with a bright red or orange color with a black symbol on all other hazardous substances; v. a clear statement as to the possible injury it may cause if used improperly; vi. precautionary measures describing the action to be followed or avoided; vii. instructions when necessary or appropriate for first aid treatment; viii. the word "poison" for any hazardous substance which is defined as highly toxic; ix. instructions for handling and storage of packages which require special care in handling and storage; and 12 x. the statement "keep out of the reach of children", or its practical equivalent, if the article is not intended for use by children and is not a banned hazardous substance, with adequate directions for the protection of children from the hazard involved. The aforementioned signal words, affirmative statements, description of precautionary measures, necessary instructions or other words or statements may be in the English language or its equivalent in Filipino. 2. on which any statement required is located prominently in bright red and orange color with a black symbol in contrast typography, layout or color with the other printed matters on the label.  Penalties for Failing to Comply with Labeling Requirements Any person who shall violate the labeling and fair packaging requirements under the Consumer Act aside from the price tag requirements will be subject to a fine of not less than Five hundred pesos (P500.00) but not more than Twenty thousand pesos (P20,000.00) or imprisonment of not less than three (3) months but not more than two (2) years or both, at the discretion of the court.xxxvii If the consumer product is other than food, cosmetic, drug, device or hazardous substance, the penalty shall be a fine of not less than Two hundred pesos (P200.00) but not more than Five thousand pesos (P5,000.00) or imprisonment of not less than one (1) month but not more than one (1) year or both, at the discretion of the court.xxxviii Any mislabeled hazardous substance when introduced into commerce or while held for sale shall be liable to be proceeded against and condemned upon order of the concerned department in accordance with existing procedure for seizure and condemnation of articles in commerce.xxxix This shall not be applicable to hazardous substance intended for export to any foreign country that complies with the following conditions: 1) “it is in a package labeled in accordance with the specifications of the foreign purchaser; 2) it is labeled in accordance with the laws of the foreign country; 3) it is labeled on the outside of the shipping package to show that it is intended for export; and 4) it is so exported.”xl Any person convicted of the manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertising, or sponsorship of any health product that is misbranded or convicted of misbranding of any health product shall suffer imprisonment of five to ten years and a fine of at least Five hundred thousand pesos (P500,000.00) to Five million pesos (P5,000,000.00).xli Further, an additional fine of one percent (1%) of the economic value/cost of the violative product or violation, or One thousand pesos (P1,000.00), whichever is higher, shall be imposed for each day of continuing violation.xlii 13 Finally, health products found in violation of the provisions of the Food and Drug Administration Act of 2009 and other relevant laws, rules and regulations may be seized and held in custody pending proceedings, without hearing or court order, when the director-general has reasonable cause to believe that such health products may cause injury or prejudice to the consuming public.xliii Brand Values: A Business’ Identity and Character Brand values are the core values that identify an enterprise and it “includes a lot more elements and goes way deeper than a simple logo you display on your website and products”.xliv Branding involves a business’ external identity, such as the colors, logos, fonts used in the marks, as well as tagline, tones and styles and means of expression.xlv It also goes into a business’ internal identity or character--its brand values.xlvi Brand values differentiate a business from its competitors and ensure a meaningful connection with customers.xlvii Hence, if an entrepreneur aspires for a large customer base, his business’ core brand values must resonate with those of his customers. Now accounting for a large portion of consumers,xlviii generations Y and Z compel businesses to continuously tweak their business models to adapt well and fit into every generational difference pertaining to consumer behavior, buying power and patterns, and more. Millennials (Generation Y) are considered as the “fastest growing” division of the workforce, and are said to be commonly characterized by a series of traits that was sculpted by the culture and environment that they had grown up in.xlix Generation Y was shaped by technology and driven by passion, with most of their lives spent in a period of economic expansion.l In comparison to previous generations, Philippines’ Generation Y are shown to be more socially-engaged or politically active, as they are more inclined to be involved in political issues.li Furthermore, millennials’ traits are attributed to being “optimistic, career-driven, socially active, and civic-oriented.”lii Based on a study done by QBO Innovation Hub and PwC Philippines, there were 300 new startups within the country, with a majority of these startups being founded between the years 2012 and 2017 by millennials starting their own business ventures.liii This exhibits the strong entrepreneurial drive shown among the tech-savvy millennial generation, where, coupled with a strong drive and creativity, may provide avenues towards boosting the technological industry in the country. This entrepreneurial mindset displayed by the millennial age group calls for enterprises tapping into this idea and therefore relaying company objectives which consequently give them the opportunity to continuously innovate. Generation Z on the other hand has been described as a socially conscious generation, having been “plugged in” to the Internet since birth.liv Given the fact that Generation Z has grown up in an Internetdependent environment, it is a given that they would value connectivity as well as free access to information.lv Being so, Gen Z has been described as a generation that is not only worried about their future but also about everyone’s future.lvi One study points out that “Gen Z strives to make a social impact while Millennials are primarily focused on realizing their own full potential”.lvii Moreover, generation Z traits do not exhibit the desire to socially conform; therefore, they are more adamant towards expressing their own creativity and individuality.lviii Amidst growing up in the age of mainstream media, the generation Z age group also values social justice, equality, and are concerned with reducing their carbon footprints to ease the effects of human-caused climate change.lix Many companies take advantage of this knowledge of their market in formulating and establishing their brand strategies. Because a company’s brand is what makes it unique, memorable and relatable to its chosen demographic, they ensure that its values appeal to the market at hand; this includes its look, message, and how it relates to its customers.lx Specifically, a brand consists of three aspects: its visual identity, its voice identity, and its brand values.lxi One’s visual identity includes the logo, colors, and typography of the brand; its voice identity is its tagline, tone, and communication styles; and 14 brand values are those that capture the three Ps of the brand, namely, its Proposition, Personality, and Purpose.lxii The brand value proposition “looks at the way your brand promises to act for as long as you serve your chosen marketplace”.lxiii Brand personality refers to “a set of human characteristics that are attributed to a brand”.lxiv The brand purpose is the “why” behind its existence, defining the soul of the organization and engaging customers emotionally through “shared beliefs, solved problems, and inherent meaning”.lxv These three brand aspects all go hand-in-hand in developing a company’s own identity. Apple as a brand has always been known as innovative and forward-thinking.lxvi Their “Think Different” campaign was effective in communicating its brand, earning its fair share within the marketplace.lxvii Nike’s “Just do it” was originally used to help fight the obesity problem in the United States, but it has also captured its ideals of heroism and drive.lxviii Lego set itself apart from other toy manufacturing companies by introducing values that appeal to parents, as well as children. They show that “they value “learning” opportunities, great customer service, and incredible quality”.lxix In all these examples, it is noticeable that companies focus on a collection of essentially the same principles. They focus on “product leadership, operational excellence, and customer relationships”.lxx Brands that value product leadership are those that want the very best for their customers. They want to provide the highest quality products or services in the market and hence they perform stringent quality testing and continuous research and development of their products.lxxi Operational excellence concerns itself in providing consistent and reliable experiences for a reasonable price.lxxii With businesses that focus on customer relationships, such companies place value on how much they care for their clients.lxxiii They carry with themselves a strong personality, powerful marketing strategies, and numerous ways of interacting with its audience.lxxiv It is possible to make use of more than one of these value propositions to focus on when companies develop their own distinct brand.lxxv It is only once these companies have defined how they want to be perceived that they may start building it.lxxvi Brand building is more than merely communicating and advertising your brand; it is a process that creates value to its consumers, and covers everything that they know, feel, and experience about a business; the total experience of the customer in relation to the brand. lxxvii With its core values as its foundation, brands now make use of different marketing strategies and campaigns that demonstrate the ideals the brand stands for. Exposure for the brand can be widened by promoting it through various promotional channels, blogs, and social media.lxxviii This is also where you drive your brand personality, one that will establish an identity that will be associated with one’s brand.lxxix As with many other things, a brand should not be static; it must be able to adapt to changes within its lifetime.lxxx Our changing world provides unlimited opportunities and challenges to enhance and reestablish one’s brand.lxxxi The most effective way of ensuring adaptability and growth for the brand is by constant review and evaluations from consumers that help the company reorganize itself and keep its relevance.lxxxii Focusing back on Generations Y and Z, many of them have placed a firm focus on larger societal issues, both before and after the onset of the COVID-19 pandemic. This demographic expressed a great desire for positive change within their communities and around the world, and holds dearly values such as freedomlxxxiii, diversitylxxxiv, and volunteerismlxxxv. They also want these values to be reflected in businesses and governments, seeking for prioritization of people and environmental sustainability versus profits.lxxxvi Generation Z in particular are very skeptical about labels and advertisements of social causes espoused by businesses; they want to actually see the claim in action for them to believe the company.lxxxvii As such, it is important for companies to uphold and prove that their brand cultivates such an environment. 15 Marks, labels and brands have come a long way from their simple roles in product and source identification. Consumers now expect brands to live up to the expectations they create when putting forward their brand personality. It is thus imperative for a business to be able to choose a legitimate mark, use proper labels and promote the correct brand values in order for their brand identity to resonate exceptionally well with their target market. ~o0o~ For any questions or legal concerns relating to marks, labels and brands, you may contact: MA.SOPHIA EDITHA CRUZ-ABRENICA Partner [email protected] CAMILLE ANGELICA MENDOZA Associate [email protected] RENSON LOUISE YU Associate [email protected] This article is intended for informational purposes only and should not be construed as legal advice.\ i See https://www.msn.com/en-ph/news/national/fda-warns-public-vs-buying-misbranded-face-masks/arBB17Cxei?ocid=spartan-dhp-feeds [Last accessed 26 August 2020] ii Section 121.1 of Republic Act No. 8293, the Intellectual Property Code of the Philippines (“IP Code”). iii Title I, Article 4 (aq) of Republic Act No. 7394, the Consumer Act of the Philippines (“RA 7394”). iv https://www.merriam-webster.com/dictionary/brand [Last accessed 24 August 2020]. v See https://www.etymonline.com/word/brand [Last accessed 21 August 2020] vi See https://www.skyword.com/contentstandard/branding-brief-history/ [Last accessed 21 August 2020] vii See https://agamerica.com/brand-history-of-cattle-branding/ [Last accessed 21 August 2020] viii See https://www.smithsonianmag.com/arts-culture/decoding-the-range-the-secret-language-of-cattlebranding-45246620/ [Last accessed 21 August 2020] ix See https://www.tsln.com/horse-rodeo/branded-a-brief-history-of-branding-throughout-the-world/ [Last accessed 21 August 2020] x See https://www.smithsonianmag.com/arts-culture/decoding-the-range-the-secret-language-of-cattlebranding-45246620/ [Last accessed 21 August 2020] xi See https://www.agribeef.com/blog/learn-the-hows-and-whys-behind-branding-cattle/ [Last accessed 21 August 2020] xii Section 121.1, IP Code. 16 xiii Section 123, IP Code. xiv Section 123 (e) of the IP Code provides that “in determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than of the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark”. xv Article 77 of RA 7394. xvi The Rules and Regulations Implementing Republic Act No. 7394 (“IRR of RA 7394”) defines a Tradename as “any individual name or surname, firm name, trade-name, device or word used by manufacturers, industrialist[s], merchants and other[s], to identify their businesses, vocations, or occupations”. xvii Article 4 (i) of RA 7394 defines a Business Name as “any name or designation other than the true name of a person, partnership, corporation or association which is used or signed in connection with his/its business or in 1) any written or printed receipt, including receipt for tax on business; 2) any written or printed contract not verified by a notary public; 3) any written or printed evidence of any agreement or business transaction; and 4) any sign or billboard kept conspicuously exhibited in plain view in or the place of the business, announcing a firm name or business name or style.” xviii DTI Department Order No. 1, Series of 2008, or the Addenda to the IRR of RA 7394. xix Section 2 of the Addenda to the IRR of RA 7394. xx Article 4 (v) of RA 7394. xxi Section 9 (jj) of RA 9711, the Food and Drug Administration Act of 2009. xxii Article 76, RA 7394. xxiii Article II, Section 4 (aa) of Republic Act No. 10611, the Food Safety Act of 2013 (“RA 20611”). xxiv Article 84, RA 7394. xxv Article 85, RA 7394. xxvi Title I, Article 4, Section (ad) of RA 7394. xxvii Id. xxviii Title I, Article 4, Section (ab) of RA 7394. xxix Article 89 of RA 7394. xxx Title I, Article 4 (u) of RA 7394. xxxi Article 87 of RA 7394. xxxii Article 88 of RA 7394. xxxiii Title I, Article 4 (ak) (1) of RA 7394. xxxiv Title I, Article 4 (ak) (2) of RA 7394. xxxv Id. xxxvi Article 91 of RA 7394. xxxvii Article 95 of RA 7394. xxxviii Id. xxxix Article 93 of RA 7394. xl Id. xli Section 11 of RA 9711. xlii Id. xliii Id. xliv See https://business.tutsplus.com/tutorials/how-to-define-your-core-brand-values-and-why-you-should-- cms-26301 [Last accessed 24 August 2020] xlv Id. xlvi Id. xlvii See https://fabrikbrands.com/how-to-define-brand-values/ [Last accessed 24 August 2020] xlviii See https://v12data.com/blog/generational-consumer-shopping-trends/ [Last accessed 21 August 2020] xlix See https://www.thebalancecareers.com/common-characteristics-of-generation-y-professionals-2164683 [Last accessed 21 August 2020] 17 l See https://www.zilliondesigns.com/blog/infographics/gen-x-vs-y-factors-shaping-consumer-purchase/ [Last accessed 21 August 2020] li See https://primer.com.ph/blog/2016/06/27/millennials-in-the-philippines-who-are-they-and-what-do-theydo/ [Last accessed 24 August 2020] lii See https://www.academia.edu/33733065/Understanding_the_Filipino_Millennial_Generation_pdf ; See also https://www.coursehero.com/file/p6ug7ed/Nonetheless-Filipino-millennials-still-differ-from-othermillennials-in-a-sense/ [Last accessed 24 August 2020]. liii See https://businessmirror.com.ph/2018/06/19/the-rise-of-filipino-millennial-entrepreneurs/ [Last accessed 24 August 2020] liv See https://brandinsights.wattpad.com/understanding-gen-z-the-socially-conscious-generation [Last accessed 24 August 2020] lv See https://www.thinkburlap.com/blog/generation-zs-values [Last accessed 24 August 2020] lvi See https://brandinsights.wattpad.com/understanding-gen-z-the-socially-conscious-generation [Last accessed 24 August 2020] lvii See https://business.inquirer.net/253095/move-millennials-gen-z-ready-make-mark [Last accessed 21 August 2020] lviii See https://www.thinkburlap.com/blog/generation-zs-values [Last accessed 24 August 2020] lix Id. lx See https://www.crowdspring.com/blog/brand-identity/ [Last accessed 24 August 2020] lxi See https://fabrikbrands.com/how-to-define-brand-values/ [Last accessed 24 August 2020] lxii Id. lxiii Id. lxiv See https://www.investopedia.com/terms/b/brandpersonality.asp#:~:text=What%20Is%20Brand%20Personality%3F%20Brand%20personality%20is%20a,of%20tr aits%20that%20a%20specific%20consumer%20segment%20enjoys. [Last accessed 24 August 2020] lxv See https://fabrikbrands.com/whats-the-purpose-of-brand-purpose/ [Last accessed 24 August 2020] lxvi See https://knowledge.wharton.upenn.edu/article/new-iphone-hit-miss/ [Last accessed 24 August 2020] lxvii See https://www.unitedlanguagegroup.com/blog/thinking-differently-why-apples-brand-succeedsworldwide [Last accessed 24 August 2020] lxviii See https://fabrikbrands.com/how-to-define-brand-values/ [Last accessed 24 August 2020] lxix Id. lxx Id. lxxi Id lxxii Id. lxxiii Id. lxxiv Id. lxxv Id. lxxvi Id lxxvii See https://www.coxblue.com/5-effective-brand-building-strategies-to-attract-customers-2/ [Last accessed 26 August 2020] lxxviii Id. lxxix Id. lxxx Id. lxxxi Id. lxxxii Id. lxxxiii See https://www.forbes.com/sites/prospernow/2012/07/05/the-new-millennial-values/#71a2ab27976f [Last accessed 26 August 2020] lxxxiv Id. lxxxv See https://danschawbel.com/blog/39-of-the-most-interesting-facts-about-generation-z/ [Last accessed 26 August 2020] lxxxvi See https://www2.deloitte.com/global/en/pages/about-deloitte/articles/millennialsurvey.html [Last accessed 26 August 2020] lxxxvii See https://www.thinkburlap.com/blog/generation-zs-values [Last accessed 26 August 2020]