SECOND DIVISION
G.R. No. 217194, September 06, 2017
SOCIETE DES PRODUITS, NESTLE, S.A., Petitioner, v. PUREGOLD PRICE CLUB, INC., Respondent.
D E C I S I O N
CARPIO, ACTING C.J.:
WHEREFORE, premises considered, the instant opposition is hereby DISMISSED. Let the filewrapper of Trademark Application Serial No. 4-2007-006134 be returned, together with a copy of this DECISION, to the Bureau of Trademarks for information and appropriate action.On 11 June 2012, Nestle filed an appeal16 with the Office of the Director General of the Intellectual Property Office (ODG-IPO).
SO ORDERED.15
WHEREFORE, premises considered, the appeal is hereby DISMISSED. Let a copy of this Decision and the records of this case be furnished and returned to the Director of Bureau of Legal Affairs for appropriate action. Further, let also the Director of the Bureau of Trademarks and the library of the Documentation, Information and Technology Transfer Bureau be furnished a copy of this Decision for information, guidance, and records purposes.On 14 April 2014, Nestle filed a Petition for Review21 with the Court of Appeals.
SO ORDERED.20
A perusal of the Petition for Review shows that:On 13 June 2014, Nestle filed a Motion for Reconsideration23 which was denied by the CA on 14 October 2014.24 The Resolution of the CA states:
1. the title thereof does not bear the name of party respondent Puregold Price Club, Inc.
2. there is no board resolution and/or secretary's certificate to prove the authority of Dennis Jose R. Barot to file the petition and to sign the Verification/Certification of Non-Forum Shopping on behalf of petitioner-corporation; and
3. certified true copies of material [portions] of the record which were mentioned therein were not attached, such as respondent's trademark application (rollo, p. 12), petitioner's Opposition thereto, Reply, the parties' respective position papers, petitioner's appeal, respondent's Comment, the parties' respective memoranda, etc.
The above considering, the Court RESOLVES to DISMISS the petition outright.22
We DENY the Motion for Reconsideration because it is without merit.
The petitioner filed the Petition beyond the 15-day reglementary period.
Under Rule 43, Section 4 of the Rules of Court, a party may file an appeal to this Court from quasi-judicial bodies like the Intellectual Property Office, within 15 days from receipt of the assailed judgment, order, or resolution.
Petitioner's counsel of record before the Intellectual Property Office ("IPO"), the Sapalo Velez Bundang & Bulilan Law Offices ("SVBB Law Offices") received a copy of the assailed Decision on 19 February 2014. Thus, petitioner had until 7 March 2014 to appeal. While the Bengzon Negre & Untalan Law Offices ("Bengzon Law Offices") entered its appearance before the IPO, no evidence was submitted before this Court showing that the Bengzon Law Offices was properly substituted as petitioner's counsel in place of SVBB Law Offices (petitioner's counsel of record). Thus, the 15-day reglementary period started to run from the date SVBB Law Offices received a copy of the Decision.
Clearly, when petitioner filed the Motion for Extension on 27 March 2014, and the Petition on 14 April 2014, the reglementary period had already lapsed.
Further, the petitioner obstinately refuses to cure the procedural infirmities we observed in the Resolution of 15 May 2014.
SO ORDERED.25
1. The Honorable Court of Appeals erred in dismissing petitioner's motion for reconsideration upon an erroneous appreciation of certain antecedent facts, and similarly erred in dismissing the petition for review on procedural grounds.
2. There is merit to the substantive issues raised by petitioner, which deserves to be given due course and a final ruling.26
Section 4. Period of appeal. — The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.During the proceedings in the ODG-IPO, Nestle substituted its counsel, Sapalo, Velez, Bundang and Bulilan Law Offices, with Bengzon, Negre and Untalan Law Offices (Nestle's substituted counsel). On 20 September 2013, Nestle's substituted counsel entered its appearance in the ODG-IPO.27 In an Order28 dated 1 October 2013, the ODG-IPO noted the appearance of Nestle's substituted counsel and included their appearance in the records of the case, to wit:
Wherefore, the APPEARANCE is hereby noted and included in the records. Accordingly, let copies of all pleadings, orders, notices and communications, be sent to the aforementioned address.The Decision of the ODG-IPO was received by Nestle's substituted counsel on 14 March 2014. On 27 March 2014, within the 15-day reglementary period provided for by Section 4 of Rule 43, Nestle filed a Motion for Extension of Time to file Verified Petition for Review30 (motion for extension) with the CA. In a Resolution31 dated 3 April 2014, the CA granted Nestle's motion for extension and gave Nestle until 13 April 2014 to file its petition for review. The resolution states:
SO ORDERED.29
The Court GRANTS petitioner's Motion for Extension of Time to File Verified Petition for Review and gives petitioner until April 13, 2014 within which to do so.32Since 13 April 2014 fell on a Sunday, Nestle had until 14 April 2014, which was the next working day, within which to file the petition for review. Nestle did file the petition for review with the CA on 14 April 2014. Accordingly, the CA committed a grave error when it ruled that Nestle's petition for review was filed beyond the prescribed period.
Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.In Zulueta v. Asia Brewery, Inc.,33 this Court ruled that the requirements under the Rules of Court involving the certification against forum shopping apply both to natural and juridical persons, to wit: "[t]he requirement that the petitioner should sign the certificate of non-forum shopping applies even to corporations, considering that the mandatory directives of the Circular and the Rules of Court make no distinction between natural and juridical persons."34
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (Emphasis supplied)
What petitioners failed to explain, however, is their failure to attach a certified true copy of Resolution No. 0912 to their petition for certiorari in CA-G.R. SP No. 60838. Their omission is fatal to their case. Courts are not, after all, expected to take judicial notice of corporate board resolutions or a corporate officer's authority to represent a corporation. To be sure, petitioners' failure to submit proof that Atty. Demecillo has been authorized by the DBP to file the petition is a "sufficient ground for the dismissal thereof."44 (Emphasis supplied)Accordingly, the CA did not err in ruling that the petition for review should be dismissed due to the failure of Nestle to comply with the proper execution of the certification against forum shopping required by Section 5, Rule 7 of the Rules of Court.
Sec. 123. Registrability. -In Coffee Partners, Inc. v. San Francisco & Roastery, Inc.,48 this Court held that the gravamen of trademark infringement is the likelihood of confusion. There is no absolute standard for the likelihood of confusion. Only the particular, and sometimes peculiar, circumstances of each case can determine its existence. Thus, in infringement cases, precedents must be evaluated in the light of each particular case.49123.1 A mark47 cannot be registered if it:x x x x
(d) Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of:
(i) The same goods or services, or
(ii) Closely related goods or services, or
(iii) If it nearly resembles such a mark as to be likely to deceive or cause confusion;
(e) Is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well- known internationally and in the Philippines, whether or not it is registered here, as being already the mark of a person other than the applicant for registration, and used for identical or similar goods or services: Provided, That in determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than of the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark;
(f) Is identical with, or confusingly similar to, or constitutes a translation of a mark considered well-known in accordance with the preceding paragraph, which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for: Provided, That use of the mark in relation to those goods or services would indicate a connection between those goods or services, and the owner of the registered mark: Provided further, That the interests of the owner of the registered mark are likely to be damaged by such use;
(g) Is likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services;
(h) Consists exclusively of signs that are generic for the goods or services that they seek to identify;
x x x x (Emphasis supplied)
SECTION 155. Remedies; Infringement. — Any person who shall, without the consent of the owner of the registered mark:In contrast, the holistic test entails a consideration of the entirety of the marks as applied to the products, including the labels and packaging, in determining confusing similarity. The discerning eye of the observer must focus not only on the predominant words but also on the other features appearing on both marks in order that the observer may draw his conclusion whether one is confusingly similar to the other.54155.1 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; (Emphasis supplied)
Endnotes:
1Rollo, pp. 12-46. Under Rule 45 of the Rules of Court.
2 Id. at 62. Signed by Division Clerk of Court Atty. Celedonia M. Ogsimer.
3 Id. at 64-67. Penned by Associate Justice Nina G. Antonio-Valenzuela, with Associate Justices Apolinario D. Bruselas, Jr. and Eduardo B. Peralta, Jr. concurring.
4 Id. at 189.
5 Id. at 230.
6 Id. at 218-220.
7 Id. at 218.
8 Id. at 68-76.
9 Id. at 70-71.
10 Id. at 72-73.
11 Id. at 294-301.
12 Id. at 299.
13 Id. at 300.
14 Id.
15 Id. at 301.
16 Id. at 302-331.
17 Id. at 412-418.
18 Id. at 415.
19 Id. at 417.
20 Id. at 418.
21 Id. at 425-455.
22 Id. at 62.
23 Id. at 480-492.
24 Id. at 64-67.
25 Id. at 65-66.
26 Id. at 17-18.
27 Id. at 404-405.
28 Id. at 410-411.
29 Id. at 410.
30 Id. at 419-422.
31 Id. at 424. Signed by Division Clerk of Court Atty. Celedonia M. Ogsimer.
32 Id.
33 406 Phil. 543 (2001).
34 Id. at 553.
35 526 Phil. 668 (2006).
36 Id. at 675.
37 412 Phil. 667 (2001).
38 492 Phil. 682 (2005).
39 Id. at 691.
40 Supra note 33, at 554.
41 Supra note 37, at 675.
42Rollo, p. 23.
43 483 Phil. 216 (2004).
44 Id. at 221.
45Dermaline, Inc. v. Myra Pharmaceuticals, Inc., 642 Phil. 503 (2010).
46 AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES.
47 A visible sign capable of distinguishing goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.
48 628 Phil. 13 (2010).
49 Id. at 23, citing Philip Morris. Inc. v. Fortune Tobacco Corporation, G.R. No. 158589, 27 June 2006, 493 SCRA 333.
50 Id. at 23-24.
51 Id. at 24.
52 480 Phil. 402 (2004).
53 Id. at 434.
54 Id.
55 296 Phil. 298 (1993).