Jan 25, 2013
On 14 December 2012, the Intellectual Property Association of the Philippines (IPAP) lodged a Petition for Certiorari and/or Prohibition with Prayer for the Issuance of a Writ of Injunction and/or Temporary Restraining Order before the Supreme Court. The IPAP petition assails the accession of the Philippines to the Madrid Protocol last 25 April 2012.
The petition, docketed as G.R. No. 204605, named the following as respondents: Executive Secretary Paquito Ochoa, Department of Foreign Affairs Secretary Albert Del Rosario and Intellectual Property Philippines Director General Ricardo Blancaflor.
IPAP argues that the accession of the Philippines to the Madrid Protocol via a mere Executive Agreement is unconstitutional. It points out that the accession by the Philippines via the Instrument of Accession signed by President Aquino on 27 March 2012 did not have the concurrence by at least two-thirds (2/3) of all of the members of the Senate, and thus violates the requirements of the Constitution.
IPAP also argues that the implementation of the Madrid Protocol in the Philippines, which allows the processing of foreign trademark applications without a resident agent or representative conflicts with local laws, specifically the IP Code. According to IPAP, this has the effect of amending a statutory law which can only be lawfully done by Congress, and not by a mere Executive Agreement.
The petition also states that the IP Philippines must desist from further accepting and processing applications under the Madrid Protocol until the high court finally determines the constitutionality of the country’s accession to the “treaty.” Whether the Madrid Protocol is considered a treaty or an executive agreement is a key issue to be decided by the Supreme Court.