SC affirms PH’s accession to Madrid Protocol

INQUIRER FILE PHOTO / RICHARD A. REYES

The Supreme Court (SC) on Tuesday affirmed the country’s 2012 accession to an international agreement on intellectual property rights without the Senate’s concurrence.

Voting 13-0, the high court dismissed the petition filed by the Intellectual Property Association of the Philippines (IPAP) against President Benigno S.C. Aquino III’s ratification of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks for lack of merit.

READ: Philippines accedes to Madrid Protocol

IPAP, in their petition, questioned the constitutionality of the Philippines’ accession to the Madrid Protocol without concurrence of the Senate.

The group argued that the Madrid Protocol is in the nature of a treaty and under the Constitution, treaties shall not be valid and effective without the concurrence by at least two-thirds of all members of the Senate.

But the high court disagreed with IPAP’s argument. It ruled the accession to the Madrid Protocol to be valid because Foreign Affairs Secretary Albert F. del Rosario deemed it to be an “executive agreement.”

READ: EU welcomes PH accession to Madrid Protocol

The agreement “does not thus require Senate concurrence,” SC Public Information Office Chief Theodore O. Te said in a press conference.

The ruling upheld the “exercise of discretion” of the Secretary of Foreign Affairs to determine whether an agreement should be considered an executive agreement or a treaty, as provided under Section 9 of Executive Order No. 459, series of 1997.

“The Court sustained respondent DFA Secretary’s determination that the Madrid Protocol was an executive agreement not requiring Senate concurrence,” Te said.

This issue brings to mind the controversial January ruling on the Enhanced Defense Cooperation Agreement, in which the high court said Article XVIII, Section 25 of the 1987 Constitution allows the President to enter into an executive agreement and not necessarily a treaty.

An executive agreement rests solely within the powers of the President and does not require the Senate’s concurrence.

The high court, in the same ruling, said the Madrid Protocol is not in conflict with Republic Act No. 8293 or the International Property Code of the Philippines.

The supposed conflict concerns the possibility of foreign trademark applications with the International Property Office being automatically granted protection in the country without the World Intellectual Property Organization (WIPO) designating the resident agents required by Section 125 of the IP Code.

But, the high court said the “difficulty, which the IPAP illustrates, is minimal, if not altogether inexistent.”

It noted the Madrid Protocol provides that such foreign applications are still examined according to the relevant national law.

This meant the country’s Intellectual Property Office “will only grant protection to a mark that meets the local registration requirements which includes the appointment of a resident agent,” Te said. RAM