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What’s in ‘ginebra’ name? For Tanduay, it’s gin like any other

Tanduay Distillers Inc. has asked the Court of Appeals to reconsider an order prohibiting the liquor firm from using the term “ginebra” for its gin products.

Tanduay has been battling the trademark infringement and unfair competition suit filed by rival Ginebra San Miguel Inc. (GSMI).

In a recent motion for reconsideration, Tanduay said the order should not be carried out because CA’s Special 13th Division had “no jurisdiction” on the petition. It claimed that GSMI had failed to comply with the rules on intellectual property (IP) on which the latter’s petition for review was based.

Tanduay also accused GSMI of “forum-shopping.”

Forum-shopping refers to the practice of resorting to different court venues to obtain relief. It increases a firm’s chances of securing a favorable judgment.

“The Honorable Court seriously erred in applying the doctrine of secondary meaning to a generic term,” Tanduay said in its petition.

The liquor firm argued that the appellate court failed to follow existing jurisprudence by holding that a generic term like “ginebra” was a dominant feature of GSMI’s composite marks.

Years ago, GSMI and Tanduay battled all the way to the Supreme Court when the former filed for an injunction against Tanduay’s use of the “Ginebra Kapitan” label. Tanduay succeeded in fending off the injunction order.

But instead of filing an appeal based on the rules of intellectual property, Tanduay pointed out that GSMI had filed an “ad cautelam” motion, or cautionary appeal. It filed the appeal with the Mandaluyong Regional Trial Court, which had ruled in 2012 that “ginebra” was a generic term to which nobody can claim exclusivity.

“The basis of GSMI’s petition for review is the applicability of the IP rules,” Tanduay said in its petition filed by legal counsel Escano Sarmiento & Partners Law Offices.

Tanduay said GSMI received a copy of Mandaluyong RTC’s decision on July 31, 2012. It should have filed a petition for review no later than Aug. 12 last year. But he petition for review was filed 99 days after GSMI received a copy.

“As a result, Mandaluyong RTC’s decision is, and should be, deemed final and executory. The said decision could no longer be reviewed and altered in any way. The finality of the lower court’s decision deprived this Honorable Court of the jurisdiction to alter said judgment in any way,” the petition said.

The petition also said the CA had committed a “serious error” when it applied the doctrine of secondary meaning to a generic term, arguing that such a ruling ran in “conflict to prevailing law, rules and jurisprudence.”

“There is no dispute that the word ‘ginebra’ is the Spanish word for gin and, as such, is generic in nature. The Intellectual Property Office’s Office of the Director General already rebuffed GSMI’s attempts to claim exclusive use of such generic term,” the petition said.  Doris C. Dumlao

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