Consumers cannot identify these brands of beer only by looking at the design or

shape of the bottle. Consequently, courts should take judicial notice that the sole
design or shape of a bottle does not create a commercial impression that is
distinct from the accompanying words or label.

After assessing each element considered by the Seabrook court, it seems likely
that no US court would find the bottle shape in question - independently of any
other elements - capable of identifying or distinguishing Compañía de Cervezas
Nacionales's goods in the market. The bottle must be presented with other
packaging elements and always with its label.
Among these, what essentially determines the attitude of the purchaser, specifically his
inclination to be cautious, is the cost of the goods. To be sure, a person who buys a box of
candies will not exercise as much care as one who buys an expensive watch. As a general
rule, an ordinary buyer does not exercise as much prudence in buying an article for which he
pays a few centavos as he does in purchasing a more valuable thing. 22 Expensive and
valuable items are normally bought only after deliberate, comparative and analytical
investigation. But mass products, low priced articles in wide use, and matters of everyday
purchase requiring frequent replacement are bought by the casual consumer without great
care. 23 In this latter category is catsup.

We do not believe, however, that the word "Isabela" can be appropriated or could be
appropriated at the time plaintiff claimed that it began to use that word as descriptive of its
products. The Royal Decree of 1888 prohibited the use of a geographical name as trade-name or
trade-mark and that decree was in force before the use of the word "Isabela" began, even under
plaintiff's claim. At least if had not been used for a sufficient length of time to give it a property
right therein, it never having been registered as a trade-name either under that decree or Act No.
666. From the date of that decree to the present time it has been unlawful to select the word
"Isabela" as a trade-name, and it would have been impossible during that time for plaintiff to have
obtained a right therein, no matter how much the word might have been used or to what extent it
had been advertised. While Act No. 666, as we have seen, expressly permits the appropriation of
a trade-mark, although it may be a geographical or descriptive name, it does not permit the
appropriation of a trade-name under the same circumstance. We accordingly repeat, from the
Royal Decree of 1888 to the present time, the word "Isabela" has not been appropriable by
anybody as a trade-name. (COMPAÑIA GENERAL DE TABACOS DE FILIPINAS, plaintiff-
appellee, vs.ALHAMBRA CIGAR & CIGARETTE MANUFACTURING CO., defendant-
appellant.)
In view of the conclusion we have reached upon the first assignment of error, it is unnecessary to
apply here the doctrine of "secondary meaning" in trade-mark parlance. This doctrine is to the
effect that a word or phrase originally incapable of exclusive appropriation with reference to an
article of the market, because geographically or otherwise descriptive, might nevertheless have
been used so long and so exclusively by one producer with reference to his article that, in that
trade and to that branch of the purchasing public, the word or phrase has come to mean that the
article was his product. (G. & C. Merriam Co. vs. Salfield, 198 F., 369, 373.)

A trademark device is susceptible to registration if it is crafted fancifully or arbitrarily and is capable

of identifying and distinguishing the goods of one manufacturer or seller from those of another.
Apart from its commercial utility, the benchmark of trademark registrability is distinctiveness.13
Thus, a generic figure, as that of a shark in this case, if employed and designed in a distinctive
manner, can be a registrable trademark device, subject to the provisions of the IP Code.

in the case of Asia Brewery, Inc. v. C.A. and San Miguel Corp.
(G.R. No. 103543, prom. July 5, 1993). In said case, the
Supreme Court found that the two competing beer products have
certain features in common. Therefore, the two competing
products are similar as far as those features are concerned. But
the Supreme Court excluded said features. Apparently the Court
wanted to distinguish between "similarity as a matter of fact" and
"similarity as a matter of law",

It is a standard type of bottle and therefore lacks exclusivity. It is

of functional or common use. It is universally used.

The color of It is a functional feature. Its function

the bottle is is to prevent the transmission of light
amber. into the said bottle and thus protect
the beer inside the bottle.