Christmas is the most celebrated worldwide holiday commemorating the birth of our Savior – Jesus Christ – when families come together, eat together, exchange gifts, stories and share the love for each other. No celebration is complete without roasted pig or “lechon”.
The term lechon came from the Spanish word “leche” which means milk. That is because lechon is originally referring to milk suckling pig that is roasted. Native Filipino are already roasting pork even before the Spaniards came.
One famous lechon brand that fought a 20-year legal battle between two lechon makers as to who has the right to use the business mark of ELARS ended on 17 February 2021 when the Supreme Court ruled in Emzee Foods, Inc. v. Elarfoods, Inc., G.R. No. 220558, that a business is remembered by its goodwill and reputation. For business, its mark is not simply a random, meaningless combination of letters, phrases or symbols. Rather these emblems embody the quality of the goods and services offered by the business. For these reasons, the law steps in to protect its intellectual property rights.
The facts of the case is that in 1970, Sps. Lontoc established a business of selling Filipino food and roasted pigs, which they marketed under the name “ELARS Lechon.” In 1989, they incorporated their food business and actively managed the corporation and used Elarfoods, Inc. as its business name and marketed its products, particularly, its roasted pigs as “ELAR’S LECHON ON A BAMBOO TRAY” that rose to notoriety as the “ELAR’S LECHON” brand. Without their knowledge and permission, Emzee Foods, Inc. sold and distributed roasted pigs using the marks “ELARZ LECHON”, “ELAR LECHON,” “PIG DEVICE” and “ON A BAMBOO TRAY”, making it appear that Elarz is a branch or franchisee of Elars. In 2001, Sps. Lontoc filed with the IPO [Intellectual Property Office] an application for registration of trademark “ELARS LECHON”. As Emzee Foods, Inc. refused to stop using the marks “ELARZ LECHON”, Elarfoods, Inc. filed a case for unfair competition and violation of intellectual property rights. As defense, Emzee Foods, Inc. argued that “ELAR” stands for letters “L” and “R”, which are initials of Lontoc-Rodriguez’s family names, which belongs to the Estate of Lontoc. In 2006, a certificate of registration was issued by IPO to Elarfoods, Inc. valid for 10 years. In 2009, IPO ruled for Elarfoods, Inc. and hold Emzee Foods, Inc. liable for unfair competition and ordered it pay damages. After losing at the Court of Appeals, they appealed.
The Supreme Court ruled that in 1998, the Intellectual Property Code was passed and the manner of acquiring ownership of a trademark reverted to registration, subject to the rule that the first-to-file shall be prioritized to the exclusion of all other applicants/users. As the rule now stands, the lawful owner of the mark shall be the person or entity who first registers it in good faith. At present, as expressed in the language of the provisions of the IP Code, prior use no longer determines the acquisition of ownership of a mark in light of the adoption of the rule that ownership of a mark is acquired through registration made validly in accordance with the provisions of the IP Code. Accordingly, the trademark provisions of the IP Code use the term “owner” in relation to registrations.
The use of Emzee Foods, Inc. of marks ELARZ LECHON, which is similar to the marks ELAR’S LECHON of Elarfoods, Inc., constitutes a violation of its intellectual property rights. It is high time that it stop using the goodwill and reputation built by Elarfoods, Inc. over the years. To fully protect its rights, it is imperative to order Emzee Food, Inc. to cease and desist from using the same. This entitles Elarfoods, Inc. the right to demand an injunction. The use of the marks “ELARZ LECHON” and “ELAR LECHON”,” which are substantially identical to ELAR’S LECHON” constitute unfair competition. Thus, the appeal of Emzee Foods, Inc. was denied while the CA decision validating the IPO ruling in favor of Elarfoods, Inc. was affirmed and it was ordered to stop using the mark “ELARZ LECHON” on its products.
