The Mangling of Rights in Philippine Broadcasting

BROADCASTING DEFINED

Broadcasting is defined in the Philippine IP Code as the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent; (IP Code, Section 202.7)

Under this setup, the broadcaster has the exclusive right to carry out, authorize or prevent any of the following acts:

1. The rebroadcasting of their broadcasts
2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; and
3. The use of such records for fresh transmissions or for fresh recording. (IP Code, Section 211)

THE CURIOUS CASE OF ABS-CBN v. PMSI

In 2009, the Supreme Court decided on a case called ABS-CBN Broadcasting Corp. v. Philippine Multimedia System, Inc., G.R. Nos. 175769-70 and I found it to be a disturbing read.

In this case, ABS-CBN, a Philippine broadcaster sued the company, Philippine Multimedia System, Inc. (PMSI) that ran Dream Satellite TV for making ABS-CBN channels available to its subscribers without permission.

ABS-CBN won the case at the Bureau of Legal Affairs (BLA) of the Intellectual Property Office (IPO) and was able to acquire a temporary restraining order against Dream Satellite TV.

The case would be appealed to the Director General, reversed the ruling that would later be affirmed by the Court of Appeals (CA) and the Supreme Court (SC).

Ultimately, the court decided that PMSI may ignore the intellectual property rights of ABS-CBN because PMSI's legislative franchise (Republic Act No. 8630) and a Memorandum Circular mandated it to carry local channels, including those owned by ABS-CBN. (Although the law never expressly exempted PMSI from acquiring licenses from the broadcasters)

WORST STATEMENT EVER

I can't believe I read this paragraph from the case:

Relevantly, PMSI’s carriage of Channels 2 and 23 is material in arriving at the ratings and audience share of ABS-CBN and its programs. These ratings help commercial advertisers and producers decide whether to buy airtime from the network. Thus, the must-carry rule is actually advantageous to the broadcasting networks because it provides them with increased viewership which attracts commercial advertisers and producers.

Like asking a musician to play for free in front of a bar’s paying customers because it’s good for exposure… familiar?

PUBLIC WELFARE IS GREATER THAN PROPERTY RIGHTS, BUT...

Indeed, I must agree with the observation of the court that “… the welfare of the people must not be sacrificed in the pursuit of profit.”

After all, the Philippine Constitution makes it clear that:

The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. (1987 Constitution, Article XII, Section 6)

BUT it is also true that the State has the responsibility of providing just compensation if and when it decides to use or take private property for a public purpose. Taking the intellectual property of ABS-CBN and handing it over to Dream Satellite TV as part of their business without a license is nothing short of a violation of the Constitutional right to due process:

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (1987 Constitution, Article III, Section 1)

COPYRIGHT AND RELATED RIGHTS OF OTHER PERSONS AFFECTED

In every broadcast, there are numerous copyrights attached to the content, belonging to different persons. Copyright belongs to the writers who wrote the scripts, the designers of the program, the graphic artists, writers of the music, the filmmakers, the photographers and videographers, the set and costume designers and all those creative persons who were involved in creating the content. 

Similarly, there are also related rights that belong to the producers and performers of the sound recordings used for the TV programs. 

Any observer must remember that the simple act of making the content available to the public without the consent of the creators is a violation of copyright law and the rights of many individuals and organizations.

SUPREME COURT SHOULD HAVES...

The court might have arrived at a more instructive and precise decision if it took the following steps:

1. Ruled on the constitutionality of the ‘must-carry’ rule of PMSI’s legislative franchise and the related Memorandum Order (which would have shown that the rule was confiscatory and in violation of the due process); 
2. Done a fair use analysis in favor of the copyright holders (PMSI’s use would have failed the fair use test); 
3. Examined the legislative franchise of ABS-CBN and see if it has the obligation to provide its content to satellite TV providers without a license. (Upon examination of R.A. 7966, there is no such obligation); and
4. Harmonized the IP Code with PMSI’s legislative franchise instead of presuming that the latter was an exception to the former.

A DECISION BAD FOR BUSINESS

There was simply a misunderstanding of copyright and related rights and their role in business. We are now left with a situation of self-discrimination where Filipino broadcast organizations are not paid for the use of their content by cable and satellite TV providers while foreign broadcasters are properly paid for theirs. 

Copyright and related rights over broadcasts have fallen off the balance in this country. I think with better IP education for judges, business organizations and lawmakers, it would still be possible to salvage this situation for better times.

Who Owns Your Wedding Photos?

Photography by Imagine Nation. Copyright 2014.

My wife and I got married last December and since that exhausting but enlightening experience, we have been exploring opportunities in the billion peso wedding industry in the Philippines.

What fascinated me personally was the photography business and how little people know about the implications of copyright law on their work.

The Philippine Intellectual Property Code (IP Code) has this to say about commissioned works:

178.4. In the case of a work commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of the work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary.

Even after paying a small fortune for your wedding photos and videos, the couple has to understand that you may own the CDs, the printouts and the files provided for you, but copyright is generally retained by the photographer.

This general rule, however, may be changed in the contract.

Photography and editing by M.R. Dy. Copyright 2014-2015.

So what exactly does it mean when a photographer owns copyright?

It means that, without the authorization of the photographer, the client cannot publish the photos in any medium (including the Internet), display the photos in a public space, make copies of the photos, print them, or in any way communicate them to the public whether the use is commercial or not.

In addition, the photographer must always be acknowledged as the author unless he or she instructs otherwise.

Although, in practice, I have never met a wedding photographer who would prevent a client from making copies or publishing their wedding photos, it's good to know that photographers do have a high level of protection in our intellectual property law as creators of original artistic works.

So how long does copyright over photographs last?

IP Code reads: 

213.5. In case of photographic works, the protection shall be for fifty (50) years from publication of the work and, if unpublished, fifty (50) years from the making.

This period is much shorter than the 'lifetime + 50 years' rule but it should be long enough to provide some level of protection. 

Still, I think our lawmakers need to review this and rationalize if there really is a significant difference between photography and other works of art. 

I honestly see no such difference.

Intellectual Property Rights in the Bangsamoro

Trivia: Did you know that intellectual property rights are mentioned in the Draft Bill Creating the Bangsamoro sub-state in Mindanao?

According Article V of the bill, intellectual property rights are categorized as one of the reserved powers of the Central Philippine Government. They found it wise to leave the management of this highly technical matter to the national government. 

This means that you won't be hearing of a Bangsamoro Intellectual Property Office in the near future. 

Nonetheless, I do hope the IPO sets up a regional office for the Bangsamoro because if and when the region is created, we should expect a whole lot of new businesses to come in.

When there is peace, there is greater room for art, beauty, discovery and exploration.

Copyright Infringement v. Plagiarism

People often mistake Copyright Infringement with Plagiarism because, on the surface, they often deal with the same thing -- improper copying. 

They are different, however, in that Copyright Infringement is a legal concept that delves more on property and ownership while Plagiarism is an academic and ethical concept, which deals with dishonesty and poor scholarship. 

Both concepts may intersect, but they may also exist apart from each other.

Here's a cheat sheet to help you all out with the two concepts:

Quick, What is a Trademark?

Trademark Case Law - Kit-Kat v. Take-It

Chocolate companies Petra and Delfi were accused of infringing the shape trademarks and copyrights of Nestle.
Nestle won its case in South Africa but lost in Singapore.

Intellectual Property Rights and Competition. These cases provide a good theoretical space to discuss balance between these two important principles of commerce. But what seems easy to determine in theory can be quite tricky in the real world. Many future cases will rise and fall from these decisions. Businesses have been warned. 

"The loss of the unique shape of Nestlé's Kit Kat bar as a distinctive attribute will inevitably result in a loss of advertising or selling power to Nestlé. This will clearly result in "blurring" of Nestlé's finger wafer shape trade mark. In addition, because Nestlé and Iffco are direct competitors, increased sales of Iffco‟s Break chocolate bars will be at the expense of Nestlé's Kit Kat chocolate bar. Economic harm to Nestlé is consequently self-evident from the primary facts." 

- K G B SWAIN of the Supreme Court of Appeal of South Africa

Read the South Africa Supreme Court case of Société des Produits Nestlé SA v International Foodstuffs 100/14) [2014] ZASCA 187 (27 November 2014).

Nestle's four wafer shape trademark.

 "Imitation is no less a valid business strategy than innovation. There is nothing unconscionable about competition. Even if the defendants did copy, it is not wrong unless such copying impinges the plaintiffs legal rights,"    

- Justice Chan Seng Onn, Supreme Court of Singapore 

Read the Singapore Supreme Court Case of Societe Des Produits Nestlé SA and another v Petra Foods Ltd and another [2014] SGHC 252. 

How to Make a Living from Music in the Philippines

Last week, I participated in a WIPO-IPOPHL seminar on 'How to Make a Living from Music'.

The key lecturer was Mr. David Stopps, author of the book with the same title. Stopps has had a long experience in music management in the UK, having worked with some of very best acts in the world like U2, the Police and David Bowie among many others.

What Stopps discussed were both familiar and new. Conceptually, I had been trained to understand copyright and collective management to the closest detail. But Stopps was able drive the nail home by talking about his real life experiences and how he witnessed independent artists earn income in so many different ways, as long as intellectual property was respected and complied with. 

Stopps discussed how music is placed in advertisements, films, TV shows, video games, apps and others, earning royalty income for the artist and the producer. He also talked about making derivate income from selling merchandise and product placement during shows. 

This was very interesting stuff that reminded me of how much time and sacrifice we need to put in to elevate the Philippine music business up to that level. 

Mark Thursday Alciso of the Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) talked about collective management of copyright and the challenges faced, including the unwillingness of businesses to pay license fees and the confusion caused by having several different organizations collect license fees for different rights over the same music.

Royalty collection also gets harder when one has to deal with large networks or organizations that have a ton of leverage. Artists in the Philippines almost never get paid for the use of their music in films, TV shows or advertisement, a common practice in more developed economies. What ought to be a significant source of income is reduced to zero and a shallow promise of 'artist exposure'... something they would get anyway whether or not they're paid.

Many other concerns were raised like the massive competition we get from foreign acts, the lack of radio airplay and the proliferation of substandard music in the mass market. 

In the end, we find ourselves back where we started. If we want this country to be a source of and a hub for great music, we need to make real changes in our understanding and respect for intellectual property and business. No more pushovers. No more compromise. As artists, we mean business.

_____

For those who missed the seminar, you may still benefit from David Stopp's experience by reading his book, published by the World Intellectual Property Organization (WIPO):

Download the PDF version of David's book from the WIPO Website

Photo Blog - WIPO Seminar on How to Make a Living from Music on July 23 to 24, 2013

I've attended and conducted over a hundred IP Seminars by WIPO in the past four years... but this one was the very best so far.

Glad to be joined by musicians and producers from the mainstream industry as well as the independent sector.

WIPO Seminar on How to Make a Living from Music

July 23 to 24, 2013

Dusit Thani Hotel, Makati City, Philippines

Organized by IPOPHL and WIPO

Geographical Indications (GI) - VuQo and the Tayabas Lambanog

Republished from February 24, 2012.

Marketed as "Philippine Vodka", the VuQo brand lambanog has made it to Hollywood: http://www.abs-cbnnews.com/lifestyle/02/24/12/filipino-vodka-makes-it-oscar-gift-bags

Priced at $24 (about P1,032) a bottle in California, very few Filipinos will get to enjoy this beautifully assembled product in its final form. But in essence, we Filipinos of legal age all know this to be the Tagalog lambanog or more specifically, the Tayabas Lambanog.

Lambanog is a powerful liquor created from the fermented nectar of the coconut flower. This nectar is then distilled and collected as Lambanog. The final product is a clear white liquid containing around 20% to 40% alcohol (40 to 80 proof) and is drank on its own or mixed with tropical fruit juices like mango, calamansi, lime, orange or pineapple.

So how did this P200 per gallon power liquor turn into a luxury? Simple. Proper intellectual property management and marketing. 

First, the VuQo brand was developed and registered as a trademark. This allows the producer to have exclusive intellectual property rights over the brand and market it freely without the fear counterfeits.

Second, the producer packaged the liquor with elegantly-designed, world-class frosted bottles. This adds class and mystique to an otherwise unromantic ordinary drink. The bottles themselves are protected by industrial design intellectual property rights. 

Third, the producer highlighted the Philippine origin of the liquor, making it exotic, unusual and exciting to the American market. The indication of origin itself may be used as a brand and helps improve the marketability of a product as authentic.

Finally, the story of how lambanog is made and the cultural rituals associated with the drink is spread to promote the authenticity and tradition attached to the drink. These traditional stories become part of the product and part of the experience. Traditional knowledge over the creation of the product, its history and rituals may be protected as intellectual property.

These strategies used helped transform this simple barrio drink into a young celebrity among the drinks of the world.

Back home, the Philippine government and private industries are working hard to set standardized practices for the production of lambanog. This way, we will be able to have the Tayabas Lambanog recognized as a Geographical Indication.

A Geographical Indication or GI is a collective brand like Champagne Wine (France), Praewa Silk (Thailand) or Idaho Potatoes (USA) that is commonly-used by producers to certify the authenticity of their product. An internationally accepted GI will help products fetch a higher price in the global market because the producers are subjected to strict product standards that guarantee quality. 

We hope to establish the Lambanog GI, among other Philippine GIs, in the world market and have our brand stand proudly alongside the Scotch Whisky and the Stolichnaya Vodka.

So we work hard to make this dream happen... but since it's a Friday night, allow me to down my first glass of triple-distilled Tayabas Lambanog with a little calamansi juice. Tagay na!

Healing Hilot - Protecting Indigenous Massage Techniques

Republished from October 14, 2011.

The Dagdagay Hilot is an ancient massage technique that was developed by the indigenous cultural communities (ICCs) of Mountain Province in the Philippines. Here, the masseuse uses uniquely shaped sticks to massage the soles of the feet in order to stimulate blood circulation. This technique is often paired with the use of virgin coconut oil and other herbs. It is believed to be effective therapy for hypertension, hormonal imbalance, depression and stress.

Today, many health spas and massage establishments employ this technique as part of their services. Cropping up alongside them are schools or training facilities that offer to teach these techniques and issue certificates for successful students. Much money changes hands in this industry, yet there has been no reported benefit to the communities of Mountain Province from which these techniques were copied. This is also true for all other indigenous hilot techniques and the communities from which they originate.

Under the Indigenous Peoples Rights Act (IPRA), ICCs have the right to exercise ownership over their health practices, among other things.[1]

The law reads: “they shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations…”

Unfortunately, this provision presently treated as a mere declaratory statement and it will continue to be one up until the National Commission on Indigenous Peoples (NCIP) shall have properly defined and operationalized these 'special measures'.

A different provision of the law offers more clarity by saying that Community Intellectual Rights (CIRs) may not be taken without ‘Free Prior and Informed Consent (FPIC)’ or ‘in violation of their laws, traditions and customs’.[2]

These rights may be used as a basis for community ownership over a health practice like massage techniques. This community property may then be the subject of a contract for the use of the technique and its name. Franchising this knowledge and brand could be a good and steady source of revenue for a community for as long as there is a properly executed contract, compliant with the dual requirements of FPIC and conformity with the community’s laws, traditions and customs.

Schools and training facilities must also be subject to the quality standards set by the community’s master practitioners. Certificates issued will no longer simply be a result of x number of hours spent in class but an authentic stamp of approval by the communities themselves of the proper application of the technique.

Trademark law can be used to support this business model by registering certification marks that may be used authenticate spas, health establishments or schools that wish to use the community’s brand. 

A “DAGDAGAY” certified establishment assures the public of the quality and authenticity of the service being offered while everybody else is prohibited from using the brand or mark. Any violator will then be liable for both trademark infringement and violation of the provisions of IPRA.

This combination of protective measures under IPRA and the Intellectual Property Code can help create a system that would give life to the ideals set by IPRA to protect the cultural integrity of our ICCs and to help them maintain control over and benefit from their knowledge, systems and practices.

Perhaps someday we can enjoy our massages with real peace of mind, knowing that our patronage is helping our indigenous peoples in a very real way.

---

[1] Sec. 34. Right to Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies. - ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts.

[2] Sec. 32. Community Intellectual Rights. - ICCs/IPs have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs. (emphasis supplied)

School-branded Money

Good education is good business.

The Stylistic Mr. Lee in Taguig

Clearly, our trademark system has failed.

This shop made it to Taguig.

Trademark Infringement - Jollibean

from www.jollibean.com

Yes, Singapore copies too.

I don't know the real story... whether Jollibee has ever tried to sue or whether they can even win this case.

This can certainly be an interesting debate about protecting well-known Filipino marks. 

If Jollibee can't be protected as THE well-known mark, then all others might as well be lost in overseas commerce.

Have a cup of Jollibean while you think about it...

from www.jollibean.com

Copyright and Trademark Infringement - Diner Dash Bar & Restaurant

Copyright & Trademark Infringement in One Strike

spotted along Bayani Road, Taguig City, Philippines

Trademark Infringement - Shangri-La Restaurant

Shangri-La Restaurant in Times Street, Quezon City, Philippines

From the trademark-junkie favorite Shangri-La International v. Developers Group (G.R. 159931, March 31, 2006 and January 22, 2007) case. 

_____

Read the two Shangri-La cases in the Philippine Supreme Court here:

first case:

http://www.lawphil.net/judjuris/juri2006/mar2006/gr_159938_2006.html

second case:

http://www.lawphil.net/judjuris/juri2007/jan2007/gr_159938_2007.html

Philippine Jurisprudence - The Skechers Trademark Case (2011)

Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corp.

G.R. No. 164321 (2011)

Skechers, USA Inc. is the owner of the registered trademarks “Skechers” and “S within an oval logo”.

Skechers filed a criminal case for trademark infringement against several store-owners that were selling shoes branded as “Strong” and bearing a similar “S” logo. The Regional Trial Court (RTC)  issued search warrants, allowing the National Bureau of Investigation (NBI) to raid the stores and confiscate 6,000 pairs of shoes.

The accused moved to quash the warrants, saying that there was no confusing similarity between the “Skechers” and the “Strong” brands.

The RTC granted the motion to quash and ordered the NBI to return the seized goods. The court said that the two brands had glaring differences and that an ordinary prudent consumer would not mistake one for the other.

On certiorari, the Court of Appeals (CA) affirmed the RTC ruling.

The matter was elevated to the Supreme Court (SC).

Issue: Did the accused commit trademark infringement?

Yes, the accused is guilty of trademark infringement.

Under the IP Code (RA No. 8293), trademark infringement is committed when: 

Remedies; Infringement. — Any person who shall, without the consent of the owner of the registered mark:  

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of 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; or  

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or 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, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material. (emphasis supplied)

There is trademark infringement when the second mark used is likely to cause confusion. There are two tests to determine this:

1. Dominancy Test – the court focuses on the similarity of the dominant features of the marks that might cause confusion in the mind of the consumer. Duplication or imitation is not necessary. Even accidental confusion may be cause for trademark infringement. More consideration is given to the aural and visual impressions created by the marks on the buyers and less weight is given to factors like price, quality, sales outlets and market segments.  

Applied to this case: The SC found that the use of the “S” symbol by Strong rubber shoes infringes on the registered Skechers trademark. It is the most dominant feature of the mark -- one that catches the buyer’s eye first. Even if the accused claims that there was a difference because the “S” used by Skechers is found inside an oval, the fact that the accused used the dominant “S” symbol already constitutes trademark infringement.  

The SC disagreed with the CA reasoning that the “S” symbol is already used for many things, including the Superman symbol. Even if this is true, the fact that Strong used same stylized “S” symbol as that of the Skechers brand makes this a case of trademark infringement. The same font and style was used in this case. The Superman “S” symbol is clearly different from the “S” in this case.  

2. Holistic or Totality Test – the court looks at the entirety of the marks as applied to the products, including the labels and packaging. You must not only look at the dominant features but all other features appearing on both marks.  

Applied to this case: Both RTC and CA used the Holistic Test to rule that there was no infringement. Both courts argued the following differences: 

• The mark “S” found in Strong Shoes is not enclosed in an “oval design.”

• The word “Strong” is conspicuously placed at the backside and insoles.

• The hang tags and labels attached to the shoes bears the word “Strong” for respondent and “Skechers U.S.A.” for private complainant;

• Strong shoes are modestly priced compared to the costs of Skechers Shoes.
 

Also using the Holistic Test, the SC corrected the lower courts and ruled that the striking similarities between the products outweigh the differences argued by the respondents:

• Same color scheme of blue, white and gray;

• Same wave-like pattern on the midsole and the outer sole;

• Same elongated designs at the side of the midsole near the heel;

• Same number of ridges on the outer soles (five at the back and six in front);

• Same location of the stylized “S” symbol;

• The words "Skechers Sport Trail" at the back of the Skechers shoes and "Strong Sport Trail" at the back of the Strong shoes, using the same font, color, size, direction and orientation;

• Same two grayish-white semi-transparent circles on top of the heel collars.

The features and overall design of the two products are so similar that there is a high likelihood of confusion. 

Two products do not need to be identical, they just need to be similar enough to confuse the ordinary buyer in order to constitute trademark infringement (Converse Rubber Corporation v. Jacinto Rubber & Plastic Co., 186 Phil. 85 [1980]). Also, the difference in price cannot be a defense in a case for trademark infringement (McDonald’s Corporation v. L.C. Big Mak Burger, Inc., 480 Phil. 402, 434 [2004]).

There are two types of confusion:

1. Product Confusion – where the ordinary prudent purchaser would be induced to purchase on product in the belief that he was buying another.
2. Source or Origin Confusion – although the goods are different, the use of the mark causes the consumer to assume that both products originate from the same source. 

Trademark law protects the owner not only from product confusion but also from source confusion. Protection is not limited to the same or similar products but extends to all cases where:

• The consumer is misled into thinking that the trademark owner extended his business into a new field;

• The consumer is misled into thinking that the trademark owner is in any way connected to the infringer’s activities; or 

• The infringement forestalls the normal potential expansion of the trademark owner’s business.

Trademark law does not only protect the owner’s reputation and goodwill, it also protects the consumers from fraud and confusion. 

In this case, it is clear that there was an attempt to copy the trademark owner’s mark and product design. In trademark infringement cases, you do not need to copy another's mark or product exactly. Colorable imitation is enough.