Saturday, August 20, 2011

The trials and tribulations of IP enforcement in the Philippines

A report in the Philippines Inquirer this week illustrates the problems with the criminal enforcement system and its ineffectiveness at combating counterfeiting and piracy. Charges were filed in court this week against two businessmen who allegedly sold counterfeit Unilever “Dove” soap products. The National Bureau of Investigations (NBI) raided the two stores in Cebu City on Nov 17, 2009. Various Dove products – shampoo, soap, face cream and powder, which Unilever declared as fake, were seized.  The State Prosecutor conducted his preliminary investigation and this led to “unfair competition” charges being filed 21 months later.

The problem with all this is the time it takes. Typically a raid in the Philippines is complainant led, so a search warrant application is filed, which leads to the raid. Then a preliminary investigation takes place. Some of these just grind to a halt, but when they do complete, it still takes a year and a half or more as this one did. Commonly the defendant attacks the search warrant order by appealing it, almost always unsuccessfully. But by this point the fast part is over!

Next comes the trial. Most cases are fully contested, with defendant counsel use every delaying tactic in the book, objecting to every single point. So open and shut cases require every point to be proven with evidence and witness testimony. Just marking the evidence and inspecting the seizure can take 6 months.  The main problem is that cases are heard typically by holding one hearing per month, usually a morning or an afternoon. At least several hearings a year are adjourned. So you might get 9 effective hearings, so 4.5 full days in a whole year. This means a 20 day trial would commonly take 5 years to conclude. One can only marvel at the wastage of time resulting from restarting a case after a month or two, when everyone has forgotten the last events. Witnesses face immense problems attending trials 5 years or more after the raids. 

This is of course an IP holder's worst nightmare, years of hearings, trying to keep witnesses ready and endless legal costs. And in Unilever's case all for a couple of shops. The source will never be found and the end result will be a small fine for the two shopkeepers. As a result many cases never make trial; many are just dropped, some settled others 'influenced' the defendant so files get lost!  Until the Philippines government fixes this problem, IP holders will complain endlessly about the system being heavily weighted to the defendant.  If there is a case study on when a country needs a specialist criminal IP court, like the Thai one, the Philippines is it.

Don't expect IP Komodo's report on the Unilever judgment before 2016. Or the appeal before 2020!

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