ipl 1 cases.pdf

8/14/2019 IPL 1 cases.pdf

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[G.R. No. 130360. August 15, 2001]

WILSON ONG CHING KIAN CHUAN, petitioner, vs.HON. COURTOF APPEALS and LORENZO TAN, respondents.

D E C I S I O N

QUISUMBING, J.:

This petition for review[1]seeks to annul the decision[2] datedAugust 27, 1997 of the Court of Appeals which set aside theresolutions[3]dated October 13 and December 15, 1993 as well as

the order dated March 1, 1994 of the Regional Trial Court of QuezonCity, Branch 94.[4]

Petitioner Wilson Ong Ching Kian Chuan (Ong), importsvermicelli from China National Cereals Oils and Foodstuffs Import

and Export Corporation, based in Beijing, China, under the firm nameC.K.C. Trading. He repacks it in cellophane wrappers with a designof two-dragons and the TOWER trademark on the uppermostportion. Ong acquired a Certificate of Copyright Registration from theNational Library on June 9, 1993 on the said design.

Ong discovered that private respondent Lorenzo Tan repackedhis vermicelli he imports from the same company but based in

Qingdao, China in a nearly identical wrapper. On September 16,1993, Ong filed against Tan a verified complaint for infringement ofcopyright with damages and prayer for temporary restraining order or

writ of preliminary injunction with the Regional Trial Court in QuezonCity. Ong alleged that he was the holder of a Certificate of CopyrightRegistration over the cellophane wrapper with the two-dragon design,

and that Tan used an identical wrapper in his business. In his prayer

for a preliminary injunction in addition to damages, he asked that Tan

be restrained from using the wrapper. He said he would post a bondto guarantee the payment of damages resulting from the issuance of

the writ of preliminary injunction.

The trial court issued a temporary restraining order on the same

date the complaint was filed. Tan filed an opposition to Ongsapplication for a writ of preliminary injunction with counter-applicationfor the issuance of a similar writ against Ong. Tan alleged that Ongwas not entitled to an injunction. According to Tan, Ong did not have

a clear right over the use of the trademark Pagoda and Lungkowvermicellias these were registered in the name of CHINA NATIONALCEREALS OIL AND FOODSTUFFS IMPORT AND EXPORT

CORPORATION, SHANDONG CEREALS AND OILS BRANCH(hereafter Ceroilfood Shandong), based in Qingdao, China. Further,Tan averred that he was the exclusive distributor in the Philippines of

the Pagoda and Lungkow vermicelliand was solely authorized to usesaid trademark. He added that Ong merely copied the two-dragondesign from Ceroilfood Shandong which had the Certificates of

Registration issued by different countries. He concluded that OngsCertificate of Copyright Registration was not valid for lack of

originality.

On September 30, 1993, Ong countered Tans opposition to theissuance of the writ of preliminary injunction.

On October 13, 1993, the court issued the writ in Ongs favorupon his filing of a P100,000.00 bond.[5]

Tan filed a motion to dissolve the writ of preliminary injunction,but the trial court denied it on December 15, 1993. [6]The motion for

reconsideration was also denied on March 1, 1994.

Tan elevated the case to the Court of Appeals via a special civilaction for certiorariwith a prayer for the issuance of a TRO and/or writ


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of preliminary injunction. Ong filed an opposition to Tans prayer for

an issuance of TRO and/or writ of preliminary injunction on theground that the trial court did not commit a grave abuse of discretion

in issuing the writ in his favor.

After oral argument, the Court of Appeals rendered a decision

on August 8, 1994, setting aside the trial courts order. It decreed:

WHEREFORE, the petition is GIVEN DUE COURSE, andGRANTED. The order dated October 13, 1993 and related orders, aswell as the writ of preliminary injunction issued by the respondentcourt, are SET ASIDE as issued with grave abuse of discretion. No

costs.

SO ORDERED.[7]

Ong filed a motion for reconsideration and on January 3, 1995,the Court of Appeals modified its August 8, 1994 order as follows:

WHEREFORE the phrase the order dated October 13, 1993 andrelated orders, as well as the writ of preliminary injunction issued bythe respondent court, are SET ASIDE as issued with grave abuse of

discretion is hereby deleted in our resolution dated 08 August 1994.In all other respects, said resolution must be maintained.

However, let a writ of preliminary injunction be issued enjoining theherein respondents and any and all persons acting for and in theirbehalf from enforcing and/or implementing the Writ of Preliminary

Injunction issued on October 15, 1993 pursuant to the Resolutiondated October 13, 1993 of the PUBLIC RESPONDENT in Civil CaseNo. Q-93-17628 entitled WILSON ONG CHING KIAN CHUAN, ETC.

vs. LORENZO TAN, ETC. upon petitioners filing of a bond ofP200,000.00.

The Branch Clerk of Court of the RTC, Branch 94, Quezon City is

directed to elevate the records of Civil Case No. 293-17128 withinTEN (10) DAYS from notice.

The parties are given THIRTY (30) DAYS from notice to file theirmemorandum or any pertinent manifestation on the matter, afterwhich the case shall be considered submitted for decision.

SO ORDERED.[8]

Pursuant to the Court of Appeals resolution on January 16,1996, the parties submitted their memoranda. On August 27, 1997,the appellate court promulgated its decision, decreeing as follows:

WHEREFORE, the resolutions dated October 13, 1993 andDecember 15, 1993 as well as the order dated March 1, 1994 - all inCivil Case No. Q-93-17628 are hereby SET ASIDE and our injunction

heretofore issued made permanent.

IT IS SO ORDERED.[9]

On October 17, 1997, Ong filed the instant petition for review,claiming that the Court of Appeals committed grave and serious

errors tantamount to acting with grave abuse of discretion and/or

acting without or in excess of its jurisdiction:

I. WHEN IT ISSUED A PERMANENT PRELIMINARYINJUNCTION IN FAVOR OF THE PRIVATE

RESPONDENT WHEN THE LATTERS RIGHT TOSUCH A RELIEF IS NOT CLEAR, DOUBTFUL AND

HAS NO LEGAL OR FACTUAL BASIS.

A. CERTIFICATE OF COPYRIGHT REGISTRATION


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JUSTIFY ISSUANCE OF WRIT OF PRELIMINARY

INJUNCTION UNDER P.D. NO. 49.

B. ISSUANCE OF PRELIMINARY INJUNCTIONMUST BE BASED ON CLEAR AND UNMISTAKABLERIGHT WHICH PETITIONER HAD AND WHICH RIGHTWAS INVADED BY THE PRIVATE RESPONDENT.

C. COURT OF APPEALS DECISION OF AUGUST8, 1994 AND ITS RESOLUTION OF JANUARY 3, 1995

RESULTS IN CONFUSION.

II. BY INTERFERING WITH THE JUDICIAL

DISCRETION OF THE TRIAL COURT.

A. RESPONDENT COURT OF APPEALSINTERFERENCE WITH THE DISCRETION OF TRIAL

COURT CONSTITUTES GRAVE ABUSE OFDISCRETION.

III. BY ISSUING A WRIT OF PRELIMINARYINJUNCTION IN FAVOR OF THE PRIVATERESPONDENT AND DISREGARDING THE WRIT

OF PRELIMINARY INJUNCTION ISSUED BY THETRIAL COURT WHOM (SIC), UNDER THEJANUARY 13, 1995 RESOLUTION OF

RESPONDENT COURT OF APPEALS, WASJUDICIALLY HELD NOT TO HAVE COMMITTEDANY GRAVE ABUSE OF DISCRETION IN THEISSUANCE OF THE OCTOBER 13, 1993 AND

RELATED ORDERS.

A. ISSUANCE OF WRIT OF PRELIMINARY

INJUNCTION ADDRESSED TO THE SOUND

DISCRETION OF THE TRIAL COURT.

IV. WHEN IT MADE ITS OWN FINDINGS ANDCONCLUSIONS, PRE-EMPTING THE TRIALCOURT AND PRE-JUDGING THE CASE, THUSLEAVING THE TRIAL COURT WITH NOTHING TO

RULE UPON.

A. COURT OF APPEALS PREJUDGED THE CASEREMANDED TO THE TRIAL COURT

The issues for our determination are: Was the issuance of thewrit of preliminary injunction proper? Was there grave abuse of

discretion committed by the Court of Appeals when it set aside theorder of the trial court, then issued a judgment touching on themerits?

Petitioner avers that the CA erred in issuing a preliminaryinjunction in private respondents favor. He says, firstly, that he is

more entitled to it. He states that as holder of the Certificate ofCopyright Registration of the twin-dragon design, he has theprotection of P.D. No. 49.[10]Said law allows an injunction in case of

infringement. Petitioner asserts that private respondent has noregistered copyright and merely relies on the trademark of his

principal abroad, which insofar as Philippine laws is concerned,cannot prevail over the petitioners copyright.

Private respondent, for his part, avers that petitioner has noclear right over the use of the copyrighted wrapper since thePAGODA trademark and label were first adopted and used and have

been duly registered by Ceroilfood Shandong not only in China but innearly 20 countries and regions worldwide. Petitioner was not the

original creator of the label, but merely copied the design of


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Ceroilfood Shandong. Private respondent presented copies of the

certificates of copyright registration in the name of CeroilfoodShandong issued by at least twenty countries and regions worldwide

which although unauthenticated are, according to him, sufficient toprovide a sampling of the evidence needed in the determination of thegrant of preliminary injunction.[11] Private respondent alleges, thatthe trademark PAGODA BRAND was registered in China on October31, 1979[12] while the trademark LUNGKOW VERMICELLI WITH

TWO-DRAGON DEVICE was registered on August 15, 1985.[13]

To resolve this controversy, we have to return to basics. Aperson to be entitled to a copyright must be the original creator of thework. He must have created it by his own skill, labor and judgment

without directly copying or evasively imitating the work of another.[14]The grant of preliminary injunction in a case rests on the sounddiscretion of the court with the caveat that it should be made withextreme caution.[15]Its grant depends chiefly on the extent of doubton the validity of the copyright, existence of infringement, and thedamages sustained by such infringement.[16] In our view, the copies

of the certificates of copyright registered in the name of CeroilfoodShandong sufficiently raise reasonable doubt. With such a doubt, the

preliminary injunction is unavailing.[17] In Medina vs. City Sheriff,Manila, 276 SCRA 133, 139 (1997), where the complainants title wasdisputed, we held that injunction was not proper.

Petitioner Ong argues that the Court of Appeals erred and

contradicted itself in its January 3, 1995 Resolution, where it deletedthe phrase the order dated October 13, 1993 and related orders, aswell as the writ of preliminary injunction issued by the respondentcourt, are SET ASIDE as issued with grave abuse of discretion in its

August 8, 1994 decision, and at the same time issued a writ ofpreliminary injunction in Tans favor.

Ongs claim (that the Court of Appeals in deleting theaforequoted phrase in the August 8, 1994 decision abandoned its

earlier finding of grave abuse of discretion on the part of the trial

court), however, is without logical basis. The appellate court merelyrestated in its own words the issue raised in the petition: from a)

whether the RTC committed grave abuse of discretion, to b) whetherTan was entitled to an injunctive relief. Then it clarified that the reliefsought is a prohibition against Ong and his agents from enforcing thewrit of preliminary injunction. Properly understood, an order enjoiningthe enforcement of a writ of preliminary injunction issued by the RTC

in a certiorari proceeding under Rule 65 of the Rules of Courteffectively sets aside the RTC order for being issued with graveabuse of discretion.

To be entitled to an injunctive writ, petitioner must show, inter

alia, the existence of a clear and unmistakable right and an urgentand paramount necessity for the writ to prevent serious damage.[18]From the above discussion, we find that petitioners right has notbeen clearly and unmistakably demonstrated. That right is what is indispute and has yet to be determined. In Developers Group ofCompanies, Inc. vs. Court of Appeals, 219 SCRA 715, 722-723

(1993), we held that in the absence of proof of a legal right and theinjury sustained by the plaintiff, an order of the trial court granting the

issuance of an injunctive writ will be set aside, for having been issuedwith grave abuse of discretion. Conformably, there was no abuse ofdiscretion by the Court of Appeals when it issued its own order torestrain the enforcement of the preliminary injunction issued by thetrial court.

Finally, we note that the complaint initially filed with the RTCwas for infringement of copyright. The trial courts resolution subjectof Tans petition under Rule 65 before the CA concerns the

correctness of the grant of the writ of preliminary injunction. The onlyissue brought before the CA involved the grave abuse of discretionallegedly committed by the trial court in granting the writ of

preliminary injunction. The Court of Appeals in declaring that the


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wrapper of petitioner is a copy of Ceroilfood Shandongs wrapper

went beyond that issue and touched on the merits of the infringementcase, which remains to be decided by the trial court.[19]In our view, it

was premature for the Court of Appeals to declare that the design ofpetitioners wrapper is a copy of the wrapper allegedly registered byCeroilfood Shandong. That matter remains for decision afterappropriate proceedings at the trial court.

WHEREFORE, the instant petition is PARTIALLY GRANTED.The prayer for a writ of preliminary injunction to prohibit Tan from

using the cellophane wrapper with two-dragon device is denied, butthe finding of the respondent appellate court that Ongs copyrightedwrapper is a copy of that of Ceroilfood Shandong is SET ASIDE for

being premature. The Regional Trial Court of Quezon City, Branch94, is directed to proceed with the trial to determine the merits of Civil

Case No. 33779 expeditiously. Let the records of this case beREMANDED to said trial court promptly.

No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ.,concur.

[G.R. No. 132604. March 6, 2002]

VENANCIO SAMBAR, doing business under the name and style

of CVS Garment Enterprises, petitioner, vs. LEVISTRAUSS & CO., and LEVI STRAUSS (PHIL.), INC.,

respondents.

D E C I S I O N

QUISUMBING, J.:

This petition for review on certiorariprays for the reversal of the

decision dated January 30, 1998, of the Court of Appeals in CA-G.R.CV No. 51553. That decision affirmed the decision in Civil Case No.88-2220 of the Regional Trial Court, Branch 66, Makati City, making

permanent the writ of preliminary injunction, ordering CVS Garmentand Industrial Company (CVSGIC) and petitioner Venancio Sambarto pay private respondents jointly and solidarily the sum of P50,000

as temperate and nominal damages, P10,000 as exemplarydamages, and P25,000 as attorneys fees and litigation costs, andordering the Director of the National Library to cancel Copyright

Registration No. 1-1998 in the name of Venancio Sambar.

The facts are as follows:

On September 28, 1987, private respondents, through a letterfrom their legal officer, demanded that CVS Garment Enterprises

(CVSGE) desist from using their stitched arcuate design on theEuropress jeans which CVSGE advertised in the Manila Bulletin.

Atty. Benjamin Gruba, counsel of CVSGE, replied that thearcuate design on the back pockets of Europress jeans was different

from the design on the back pockets of Levis jeans. He furtherasserted that his client had a copyright on the design it was using.

Thereafter, private respondents filed a complaint againstSambar, doing business under the name and style of CVSGE.Private respondents also impleaded the Director of the NationalLibrary. Summons was sent to Sambar in his business address at161-B Iriga corner Retiro, La Loma, Quezon City.

Atty. Gruba claimed that he erroneously received the original

summons as he mistook it as addressed to his client, CVSGIC. Hereturned the summons and the pleadings and manifested in court that


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CVSGE, which was formerly doing business in the premises, already

stopped operation and CVSGIC took over CVSGEs occupation of thepremises. He also claimed he did not know the whereabouts of

Sambar, the alleged owner of CVSGE.Thereafter, private respondents amended their complaint to

include CVSGIC. When private respondents learned thewhereabouts of Sambar and CVSGE, the case was revived.

Private respondents alleged in their complaint that Levi Straussand Co. (LS&Co.), an internationally known clothing manufacturer,owns the arcuate design trademark which was registered under U.S.

Trademark Registration No. 404, 248 on November 16, 1943, and inthe Principal Register of trademarks with the Philippine Patent Officeunder Certificate of Registration No. 20240 issued on October 8,

1973; that through a Trademark Technical Data and TechnicalAssistance Agreement with Levi Strauss (Phil.) Inc. (LSPI) in 1972,

LS&Co. granted LSPI a non-exclusive license to use the arcuatetrademark in its manufacture and sale of Levis pants, jackets andshirts in the Philippines; that in 1983, LS&Co. also appointed LSPI as

its agent and attorney-in-fact to protect its trademark in thePhilippines; and that sometime in 1987, CVSGIC and VenancioSambar, without the consent and authority of private respondents and

in infringement and unfair competition, sold and advertised, anddespite demands to cease and desist, continued to manufacture, selland advertise denim pants under the brand name Europress with

back pockets bearing a design similar to the arcuate trademark ofprivate respondents, thereby causing confusion on the buying public,prejudicial to private respondents goodwill and property right.

In its answer, CVSGIC admitted it manufactured, sold andadvertised and was still manufacturing and selling denim pants under

the brand name of Europress, bearing a back pocket design of twodouble arcs meeting in the middle. However, it denied that there wasinfringement or unfair competition because the display rooms of

department stores where Levis and Europress jeans were sold, were

distinctively segregated by billboards and other modes ofadvertisement. CVSGIC avers that the public would not be confused

on the ownership of such known trademark as Levis, Jag, Europress,etc.. Also, CVSGIC claimed that it had its own original arcuatedesign, as evidenced by Copyright Registration No. 1-1998, whichwas very different and distinct from Levis design. CVSGIC prayedfor actual, moral and exemplary damages by way of counterclaim.

Petitioner Venancio Sambar filed a separate answer. He

denied he was connected with CVSGIC. He admitted that CopyrightRegistration No. 1-1998 was issued to him, but he denied using it.He also said he did not authorize anyone to use the copyrighted

design. He counterclaimed for moral and exemplary damages andpayment of attorneys fees.

After hearing, the trial court issued a writ of preliminary

injunction enjoining CVSGIC and petitioner from manufacturing,advertising and selling pants with the arcuate design on their backpockets. CVSGIC and petitioner did not appear during the October

13 and 27, 1993 hearings, when they were to present evidence.Consequently, the trial court ruled that they waived their right topresent evidence.

On May 3, 1995, the trial court rendered its decision. The

dispositive portion reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered:

a) making the writ of preliminary injunction permanent;

b) ordering the defendants CVS Garment and Industrial Company

and Venancio Sambar to pay the plaintiffs jointly and solidarily thesum of P50,000.00 as temperate and nominal damages, the sum of


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P10,000.00 as exemplary damages, and the sum of P25,000.00 as

attorneys fees and litigation expenses and to pay the costs.

SO ORDERED.[1]

Private respondents moved for a reconsideration praying for thecancellation of petitioners copyright registration. The trial court

granted reconsideration in its July 14, 1995 order, thus:

IN VIEW OF THE FOREGOING, judgment is hereby rendered:

a) making the writ of preliminary injunction permanent;

b) ordering the defendants CVS Garment and Industrial Company

and Venancio Sambar to pay the plaintiffs jointly and solidarily thesum of P50,000.00 as temperate and nominal damages, the sum ofP10,000.00 as exemplary damages, and the sum of P25,000.00 as

attorneys fees and litigation expenses and to pay the costs;

c) ordering the Director of the National Library to cancel the

Copyright Registration No. 1-1998 issued in the name of VenancioSambar.[2]

Petitioner appealed to the Court of Appeals which on January

30, 1998 decided in favor of private respondents as follows:

WHEREFORE, the judgment appealed from is AFFIRMED in toto.

SO ORDERED.[3]

In this instant petition, petitioner avers that the Court of Appealserred in:

I. ...RULING THAT THERE WAS AN INFRINGEMENT

OF RESPONDENTS ARCUATE MARK.

II. ...RULING THAT PETITIONER IS JOINTLY AND

SOLIDARILY LIABLE WITH CVS GARMENTSINDUSTRIAL CORPORATION FOR INFRINGEMENT

OF RESPONDENTS ARCUATE MARK.

III. ...IN ORDERING, THERE BEING NOINFRINGEMENT OR UNFAIR COMPETITION, THEAWARD OF DAMAGES AND CANCELLATION OFCOPYRIGHT REGISTRATION NO. 1-1998 ISSUED

IN THE NAME OF PETITIONER.[4]

Briefly, we are asked to resolve the following issues:

1. Did petitioner infringe on private respondents arcuatedesign?

2. Must we hold petitioner solidarily liable with CVS Garments

Industrial Corporation?

3. Are private respondents entitled to nominal, temperate andexemplary damages and cancellation of petitioners copyright?

On the first issue, petitioner claims that he did not infringe on

private respondents arcuate design because there was no colorable

imitation which deceived or confused the public. He cites EmeraldGarment Manufacturing Corporation vs. Court of Appeals, G.R. No.

100098, 251 SCRA 600 (1995), as authority. He disagreed with theCourt of Appeals that there were confusing similarities between Levisand Europress arcuate designs, despite the trial courts observationof differences in them. Petitioner maintains that although the

backpocket designs had similarities, the public was not confusedbecause Levis jeans had other marks not found in Europress jeans.Further, he says Levis long history and popularity made its trademark


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easily identifiable by the public.

In its comment, private respondents aver that the Court of

Appeals did not err in ruling that there was infringement in this case.

The backpocket design of Europress jeans, a double arc intersectingin the middle was the same as Levis mark, also a double arc

intersecting at the center. Although the trial court found differences inthe two designs, these differences were not noticeable. Further,private respondents said, infringement of trademark did not requireexact similarity. Colorable imitation enough to cause confusion

among the public, was sufficient for a trademark to be infringed.Private respondents explained that in a market research theyconducted with 600 respondents, the result showed that the public

was confused by Europress trademark visthe Levis trademark.

We find that the first issue raised by petitioner is factual. Thebasic rule is that factual questions are beyond the province of this

Court in a petition for review. Although there are exceptions to thisrule, this case is not one of them.[5] Hence, we find no reason todisturb the findings of the Court of Appeals that Europress use of the

arcuate design was an infringement of the Levis design.

On the second issue, petitioner claims that private respondentsdid not show that he was connected with CVSGIC, nor did they provehis specific acts of infringement to make him liable for damages.

Again, this is a factual matter and factual findings of the trial court,

concurred in by the Court of Appeals, are final and binding on thisCourt.[6]Both the courts below found that petitioner had a copyrightover Europress arcuate design and that he consented to the use of

said design by CVSGIC. We are bound by this finding, especially inthe absence of a showing that it was tainted with arbitrariness orpalpable error.[7]It must be stressed that it was immaterial whether

or not petitioner was connected with CVSGIC. What is relevant isthat petitioner had a copyright over the design and that he allowed theuse of the same by CVSGIC.

Petitioner also contends that the Court of Appeals erred when it

said that he had the burden to prove that he was not connected withCVSGIC and that he did not authorize anyone to use his copyrighted

design. According to petitioner, these are important elements ofprivate respondents cause of action against him, hence, privaterespondents had the ultimate burden of proof.

Pertinent is Section 1, Rule 131 of the Rules of Court[8]whichprovides that the burden of proof is the duty of a party to prove thetruth of his claim or defense, or any fact in issue by the amount of

evidence required by law. In civil cases, the burden of proof may beon either the plaintiff or the defendant. It is on the latter, if in hisanswer he alleges an affirmative defense, which is not a denial of an

essential ingredient in the plaintiffs cause of action, but is one which,if established, will be a good defense i.e., an avoidance of the

claim, which prima facie, the plaintiff already has because of thedefendants own admissions in the pleadings.[9]

Petitioners defense in this case was an affirmative defense. Hedid not deny that private respondents owned the arcuate trademark

nor that CVSGIC used on its products a similar arcuate design. Whathe averred was that although he owned the copyright on theEuropress arcuate design, he did not allow CVSGIC to use it. He

also said he was not connected with CVSGIC. These were notalleged by private respondents in their pleadings, and petitionertherefore had the burden to prove these.

Lastly, are private respondents entitled to nominal, temperateand exemplary damages and cancellation of petitioners copyright?

Petitioner insists that he had not infringed on the arcuate

trademark, hence, there was no basis for nominal and temperatedamages. Also, an award of nominal damages precludes an awardof temperate damages. He cites Ventanilla vs. Centeno, G.R. No. L-

14333, 1 SCRA 215 (1961) on this. Thus, he contends, assuming


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arguendothat there was infringement, the Court of Appeals still erred

in awarding both nominal and temperate damages.

Petitioner likewise said that the grant of exemplary damages

was inconsistent with the trial courts finding that the design ofEuropress jeans was not similar to Levis design and that no

pecuniary loss was suffered by respondents to entitle them to suchdamages.

Lastly, petitioner maintains that as Europress arcuate design isnot a copy of that of Levis, citing the trial courts findings thatalthough there are similarities, there are also differences in the two

designs, cancellation of his copyright was not justified.

On this matter, private respondents assert that the lower courts

found that there was infringement and Levis was entitled to damagesbased on Sections 22 and 23 of RA No. 166 otherwise known as theTrade Mark Law,[10] as amended, which was the law thengoverning. Said sections define infringement and prescribe the

remedies therefor. Further, private respondents aver it wasmisleading for petitioner to claim that the trial court ruled that privaterespondents did not suffer pecuniary loss, suggesting that the award

of damages was improper. According to the private respondents, thetrial court did not make any such ruling. It simply stated that therewas no evidence that Levis had suffered decline in its sales because

of the use of the arcuate design by Europress jeans. They offer that

while there may be no direct proof that they suffered a decline insales, damages may still be measured based on a reasonablepercentage of the gross sales of the respondents, pursuant to Section

23 of the Trademark law.[11]

Finally, regarding the cancellation of petitioners copyright,private respondents deny that the trial court ruled that the arcuatedesign of Europress jeans was not the same as Levis arcuate design

jeans. On the contrary, the trial court expressly ruled that there was

similarity. The cancellation of petitioners copyright was justified

because petitioners copyright can not prevail over respondentsregistration in the Principal Register of Bureau of Patents,

Trademarks, and Technology Transfer. According to privaterespondents, the essence of copyright registration is originality and acopied design is inherently non-copyrightable. They insist thatregistration does not confer originality upon a copycat version of aprior design.

From the foregoing discussion, it is clear that the matters raised

by petitioner in relation to the last issue are purely factual, except thematter of nominal and temperate damages. Petitioner claims thatdamages are not due private respondents and his copyright should

not be cancelled because he had not infringed on Levis trademark.Both the trial court and the Court of Appeals found there was

infringement. Thus, the award of damages and cancellation ofpetitioners copyright are appropriate.[12] Award of damages isclearly provided in Section 23,[13] while cancellation of petitionerscopyright finds basis on the fact that the design was a mere copy of

that of private respondents trademark. To be entitled to copyright,the thing being copyrighted must be original, created by the author

through his own skill, labor and judgment, without directly copying orevasively imitating the work of another.[14]

However, we agree with petitioner that it was error for the Courtof Appeals to affirm the award of nominal damages combined with

temperate damages[15]by the Regional Trial Court of Makati. Whatrespondents are entitled to is an award for temperate damages, notnominal damages. For although the exact amount of damage or losscan not be determined with reasonable certainty, the fact that there

was infringement means they suffered losses for which they areentitled to moderate damages.[16] We find that the award ofP50,000.00 as temperate damages fair and reasonable, considering

the circumstances herein as well as the global coverage and


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reputation of private respondents Levi Strauss & Company and Levi

Strauss (Phil.), Inc.

WHEREFORE, the decision dated January 30, 1998, of the

Court of Appeals, in CA-G.R. CV No. 51553 AFFIRMING thejudgment of the Regional Trial Court of Makati, Branch 66, dated July

14, 1995, is hereby MODIFIED so that nominal damages are deletedbut the amount of P50,000 is hereby awarded only as TEMPERATEDAMAGES. In all other respects, said judgment is herebyAFFIRMED, to wit:

a) the writ of preliminary injunction is made permanent;

b) the defendants CVS Garment and Industrial Companyand Venancio Sambar are ordered also to pay the

plaintiffs jointly and solidarily the sum of P10,000.00as exemplary damages, and the sum of P25,000.00as attorneys fees and litigation expenses, and to paythe costs; and

c) the Director of the National Library is ordered to cancel

the Copyright Registration No. 1-1998 issued in thename of Venancio Sambar.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ.,

concur.

G.R. No. L-19439 October 31, 1964

MAURO MALANG SANTOS,plaintiff-appellant, vs. MCCULLOUGH

PRINTING COMPANY,defendant-appellee.

Taada Teehankee & Carreon for plaintiff-appellant. Esposo &

Usison for defendant-appellee.

PAREDES, J.:

This is an action for damages based on the provisions of Articles 721and 722 of the Civil Code of the Philippines, allegedly on theunauthorized use, adoption and appropriation by the defendantcompany of plaintiff's intellectual creation or artistic design for a

Christmas Card. The design depicts "a Philippine rural Christmas timescene consisting of a woman and a child in a nipa hut adorned with astar-shaped lantern and a man astride a carabao, beside a tree,

underneath which appears the plaintiff's pen name, Malang."

The complaint alleges that plaintiff Mauro Malang Santos designed

for former Ambassador Felino Neri, for his personal Christmas Cardgreetings for the year 1959, the artistic motif in question. Thefollowing year the defendant McCullough Printing Company, without

the knowledge and authority of plaintiff, displayed the very design inits album of Christmas cards and offered it for sale, for a price. Forsuch unauthorized act of defendant, plaintiff suffered moral damages

to the tune of P16,000.00, because it has placed plaintiff'sprofessional integrity and ethics under serious question and causedhim grave embarrassment before Ambassador Neri. He further

prayed for the additional sum of P3,000.00 by way of attorney's fee.

Defendant in answer to the complaint, after some denials andadmissions, moved for a dismissal of the action claiming that

(1) The design claimed does not contain a clear notice that it

belonged to him and that he prohibited its use by others;

(2) The design in question has been published but does not contain anotice of copyright, as in fact it had never been copyrighted by the


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plaintiff, for which reason this action is barred by the Copyright Law;

(3) The complaint does not state a cause of action.

The documentary evidence submitted were the Christmas cards, asoriginally designed by plaintiff, the design as printed for AmbassadorNeri, and the subsequent reprints ordered by other parties. The casewas submitted an a "Stipulation of Fact" the pertinent portions of

which are hereunder reproduced:

1. That the plaintiff was the artist who created the design shown in

Exhibit A, ...

2. That the design carries the pen name of plaintiff, MALANG, on its

face ... and indicated in Exhibit A, ...

3. That said design was created by plaintiff in the latter part of 1959

for the personal use of former Ambassador Felino Neri; ...

4. That former Ambassador Neri had 800 such cards ... printed by thedefendant company in 1959, ... which he distributed to his friends in

December, 1959;

5. That defendant company utilized plaintiff's design in the year 1960

in its album of Christmas card samples displayed to its customers ... .

6. That the Sampaguita Pictures, Inc., placed an order with defendantcompany for 700 of said cards ... while Raul Urra & Co. ordered 200

..., which cards were sent out by them to their respectivecorrespondent, clients and friends during the Christmas season of

1960;

7. That defendant company's use of plaintiff's design was without

knowledge, authority or consent of plaintiff;

8. That said design has not been copyrighted;

9. That plaintiff is an artist of established name, good-will and

reputation. ... .

Upon the basis of the facts stipulated, the lower court renderedjudgment on December 1, 1961, the pertinent portions of which are

recited below:

As a general proposition, there can be no dispute that the artistacquires ownership of the product of his art. At the time of its

creation, he has the absolute dominion over it. To help the author

protect his rights the copyright law was enacted.

In intellectual creations, a distinction must be made between twoclasses of property rights; the fact of authorship and the right topublish and/or distribute copies of the creation. With regard to the

first, i.e. the fact of authorship, the artist cannot be divested of thesame. In other words, he may sell the right to print hundred of hiswork yet the purchaser of said right can never be the author of the

creation.

It is the second right, i.e., the right to publish, republish, multiply

and/or distribute copies of the intellectual creation which the state,through the enactment of the copyright law, seeks to protect. Theauthor or his assigns or heirs may have the work copyrighted andonce this is legally accomplished any infringement of the copyright

will render the infringer liable to the owner of the copyright.

xxx xxx xxx


12/44

The plaintiff in this case did not choose to protect his intellectual

creation by a copyright. The fact that the design was used in theChristmas card of Ambassador Neri who distributed eight hundredcopies thereof among his friends during the Christmas season of

1959, shows that the, same was published.

Unless satisfactorily explained a delay in applying for a copyright, of

more than thirty days from the date of its publication, converts theproperty to one of public domain.

Since the name of the author appears in each of the alleged infringing

copies of the intellectual creation, the defendant may not be said tohave pirated the work nor guilty of plagiarism Consequently, the

complaint does not state a cause of action against the defendant.

xxx xxx ;xxx

WHEREFORE, the Court dismisses the complaint without

pronouncement as to costs.

In his appeal to this Court, plaintiff-appellant pointed five (5) errorsallegedly committed by the trial court, all of which bring to the fore,

the following propositions: (1) whether plaintiff is entitled to protection,notwithstanding the, fact that he has not copyrighted his design; (2)whether the publication is limited, so as to prohibit its use by others,

or it is general publication, and (3) whether the provisions of the CivilCode or the Copyright Law should apply in the case. We will

undertake a collective discussion of these propositions.

Under the established facts, We find that plaintiff is not entitled to aprotection, the provision of the Civil Code, notwithstanding.

Paragraph 33 of Patent Office Administrative Order No. 3 (asamended dated September 18, 1947) entitled "Rules of Practice in

the Philippines Patent Office relating to the Registration of Copyright

Claims" promulgated pursuant to Republic Act 165, provides, amongothers, that an intellectual creation should be copyrighted thirty (30)days after its publication, if made in Manila, or within sixty (60) day's if

made elsewhere, failure of which renders such creation publicproperty. In the case at bar, even as of this moment, there is nocopyright for the design in question. We are not also prepared toaccept the contention of appellant that the publication of the design

was a limited one, or that there was an understanding that onlyAmbassador Neri should, have absolute right to use the same. In thefirst place, if such were the condition then Ambassador Neri would be

the aggrieved party, and not the appellant. In the second place, ifthere was such a limited publication or prohibition, the same was notshown on the face of the design. When the purpose is a limited

publication, but the effect is general publication, irrevocable rightsthereupon become vested in the public, in consequence of whichenforcement of the restriction becomes impossible (Nutt vs. National

Institute, 31 F [2d] 236). It has been held that the effect of offering forsale a dress, for example manufactured in accordance with anoriginal design which is not protected by either a copyright or a

patent, is to divest the owner of his common law rights therein byvirtue of the publication of a 'copy' and thereafter anyone is free tocopy the design or the dress (Fashion Originators Guild of America v.

Federal Trade Commission, 114 F [2d] 80). When Ambassador Neridistributed 800 copies of the design in controversy, the plaintiff lostcontrol of his design and the necessary implication was that there hadbeen a general publication, there having been no showing of a clear

indication that a limited publication was intended. The author of aliterary composition has a light to the first publication thereof. He hasa right to determine whether it shall be published at all, and if

published, when, where, by whom, and in what form. This exclusiveright is confined to the first publication. When once published, it is

dedicated to the public, and the author loses the exclusive right tocontrol subsequent publication by others, unless the work is placed


13/44

under the protection of the copyright law. (See II Tolentino's

Comments on the Civil Code, p. 433, citing Wright v. Eisle 83 N.Y.Supp. 887.)

CONFORMABLY WITH ALL THE FOREGOING, We find that the

errors assigned have not been committed by the lower court. Thedecision appealed from, therefore, should be, as it is hereby affirmed.

Costs taxed against plaintiff-appellant.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera,Dizon, Makalintal, Bengzon, J. P., and Zaldivar JJ.,concur. Regala,

J.,took no part.

G.R. No. L-36402 March 16, 1987

FILIPINO SOCIETY OF COMPOSERS, AUTHORS ANDPUBLISHERS, INC., plaintiff-appellant, vs. BENJAMIN TAN,

defendant-appellee.

Lichauco, Picazo & Agcaoili Law Office for plaintiff-appellant.

Ramon A. Nieves for defendant-appellee.

PARAS, J.:

An appeal was made to the Court of Appeals docketed as CA-G.R.

No. 46373-R * entitled Filipino Society of Composers, Authors,Publishers, Inc., Plaintiff-Appellant v. Benjamin Tan, Defendant-Appellee, from the decision of the Court of First Instance of Manila,

Branch VII in Civil Case No. 71222 **"Filipino Society of Composers,Authors and Publishers, Inc., Plaintiff v. Benjamin Tan, Defendant,"

which had dismissed plaintiffs' complaint without special

pronouncement as to costs.

The Court of Appeals, finding that the case involves pure questions oflaw, certified the same to the Supreme Court for final determination

(Resolution, CA-G.R. No. 46373-R, Rollo, p. 36; Resolution of the

Supreme Court of February 16, 1973 in L-36402, Rollo, p. 38).

The undisputed facts of this case are as follows:

Plaintiff-appellant is a non-profit association of authors, composersand publishers duly organized under the Corporation Law of thePhilippines and registered with the Securities and Exchange

Commission. Said association is the owner of certain musical

compositions among which are the songs entitled: "Dahil Sa Iyo","Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang" and "The

Nearness Of You."

On the other hand, defendant-appellee is the operator of a restaurant

known as "Alex Soda Foundation and Restaurant" where a combowith professional singers, hired to play and sing musical compositionsto entertain and amuse customers therein, were playing and singing

the above-mentioned compositions without any license or permissionfrom the appellant to play or sing the same. Accordingly, appellantdemanded from the appellee payment of the necessary license fee

for the playing and singing of aforesaid compositions but the demandwas ignored.

Hence, on November 7, 1967, appellant filed a complaint with thelower court for infringement of copyright against defendant-appelleefor allowing the playing in defendant-appellee's restaurant of said

songs copyrighted in the name of the former.


14/44

Defendant-appellee, in his answer, countered that the complaint

states no cause of action. While not denying the playing of saidcopyrighted compositions in his establishment, appellee maintainsthat the mere singing and playing of songs and popular tunes even if

they are copyrighted do not constitute an infringement (Record onAppeal, p. 11; Resolution, CA-G.R. NO. 46373-R, Rollo, pp. 32-36)under the provisions of Section 3 of the Copyright Law (Act 3134 of

the Philippine Legislature).

The lower court, finding for the defendant, dismissed the complaint

(Record on Appeal, p. 25).

Plaintiff appealed to the Court of Appeals which as already statedcertified the case to the Supreme Court for adjudication on the legal

question involved. (Resolution, Court of Appeals, Rollo, p. 36;Resolution of the Supreme Court of February 18, 1973, Rollo, p. 38).

In its brief in the Court of Appeals, appellant raised the following

Assignment of Errors:

I

THE LOWER COURT ERRED IN HOLDING THAT THE MUSICALCOMPOSITIONS OF THE APPELLANT WERE IN THE NATURE OFPUBLIC PROPERTY WHEN THEY WERE COPYRIGHTED OR

REGISTERED.

II

THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL

COMPOSITIONS OF THE APPELLANT WERE PLAYED AND SUNGIN THE SODA FOUNTAIN AND RESTAURANT OF THE APPELLEEBY INDEPENDENT CONTRACTORS AND ONLY UPON THE

REQUEST OF CUSTOMERS.

III

THE LOWER COURT ERRED IN HOLDING THAT THE PLAYINGAND SINGING OF COPYRIGHTED MUSICAL COMPOSITIONS INTHE SODA FOUNTAIN AND RESTAURANT OF THE APPELLEEARE NOT PUBLIC PERFORMANCES FOR PROFIT OF THE SAID

COMPOSITIONS WITHIN THE MEANING AND CONTEMPLATION

OF THE COPYRIGHT LAW.

IV

THE LOWER COURT ERRED IN NOT HOLDING THAT THE

APPELLEE IS LIABLE TO THE APPELLANT FOR FOUR (4)SEPARATE INFRINGEMENTS. (Brief for Appellant, pp. A and B).

The petition is devoid of merit.

The principal issues in this case are whether or not the playing andsigning of musical compositions which have been copyrighted under

the provisions of the Copyright Law (Act 3134) inside theestablishment of the defendant-appellee constitute a publicperformance for profit within the meaning and contemplation of theCopyright Law of the Philippines; and assuming that there were

indeed public performances for profit, whether or not appellee can beheld liable therefor.

Appellant anchors its claim on Section 3(c) of the Copyright Law

which provides:

SEC. 3. The proprietor of a copyright or his heirs or assigns shall

have the exclusive right:


15/44

xxx xxx xxx

(c) To exhibit, perform, represent, produce, or reproduce the

copyrighted work in any manner or by any method whatever for profitor otherwise; if not reproduced in copies for sale, to sell any

manuscripts or any record whatsoever thereof;

xxx xxx xxx

It maintains that playing or singing a musical composition is

universally accepted as performing the musical composition and thatplaying and singing of copyrighted music in the soda fountain andrestaurant of the appellee for the entertainment of the customers

although the latter do not pay for the music but only for the food and

drink constitute performance for profit under the Copyright Law (Brieffor the Appellant, pp. 19-25).

We concede that indeed there were "public performances for profit. "

The word "perform" as used in the Act has been applied to "One whoplays a musical composition on a piano, thereby producing in the airsound waves which are heard as music ... and if the instrument he

plays on is a piano plus a broadcasting apparatus, so that waves arethrown out, not only upon the air, but upon the other, then also he isperforming the musical composition." (Buck, et al. v. Duncan, et al.;

Same Jewell La Salle Realty Co., 32F. 2d. Series 367).

In relation thereto, it has been held that "The playing of music in dineand dance establishment which was paid for by the public in

purchases of food and drink constituted "performance for profit" withina Copyright Law." (Buck, et al. v. Russon No. 4489 25 F. Supp. 317).

Thus, it has been explained that while it is possible in suchestablishments for the patrons to purchase their food and drinks and

at the same time dance to the music of the orchestra, the music is

furnished and used by the orchestra for the purpose of inducing thepublic to patronize the establishment and pay for the entertainment inthe purchase of food and drinks. The defendant conducts his place of

business for profit, and it is public; and the music is performed forprofit (Ibid, p. 319). In a similar case, the Court ruled that "ThePerformance in a restaurant or hotel dining room, by personsemployed by the proprietor, of a copyrighted musical composition, for

the entertainment of patrons, without charge for admission to hear it,infringes the exclusive right of the owner of the copyright." (Herbert v.Shanley Co.; John Church Co. v. Hillard Hotel Co., et al., 242 U.S.

590-591). In delivering the opinion of the Court in said two cases,Justice Holmes elaborated thus:

If the rights under the copyright are infringed only by a performancewhere money is taken at the door, they are very imperfectlyprotected. Performances not different in kind from those of the

defendants could be given that might compete with and even destroythe success of the monopoly that the law intends the plaintiffs tohave. It is enough to say that there is no need to construe the statute

so narrowly. The defendants' performances are not eleemosynary.They are part of a total for which the public pays, and the fact that theprice of the whole is attributed to a particular item which those

present are expected to order is not important. It is true that the musicis not the sole object, but neither is the food, which probably could be

got cheaper elsewhere. The object is a repast in surroundings that topeople having limited power of conversation or disliking the rivalnoise, give a luxurious pleasure not to be had from eating a silentmeal. If music did not pay, it would be given up. If it pays, it pays out

of the public's pocket. Whether it pays or not, the purpose of

employing it is profit, and that is enough. (Ibid., p. 594).

In the case at bar, it is admitted that the patrons of the restaurant in


16/44

question pay only for the food and drinks and apparently not for

listening to the music. As found by the trial court, the music providedis for the purpose of entertaining and amusing the customers in orderto make the establishment more attractive and desirable (Record on

Appeal, p. 21). It will be noted that for the playing and singing themusical compositions involved, the combo was paid as independentcontractors by the appellant (Record on Appeal, p. 24). It is thereforeobvious that the expenses entailed thereby are added to the

overhead of the restaurant which are either eventually charged in theprice of the food and drinks or to the overall total of additional incomeproduced by the bigger volume of business which the entertainment

was programmed to attract. Consequently, it is beyond question thatthe playing and singing of the combo in defendant-appellee'srestaurant constituted performance for profit contemplated by the

Copyright Law. (Act 3134 amended by P.D. No. 49, as amended).

Nevertheless, appellee cannot be said to have infringed upon the

Copyright Law. Appellee's allegation that the composers of thecontested musical compositions waived their right in favor of thegeneral public when they allowed their intellectual creations to

become property of the public domain before applying for thecorresponding copyrights for the same (Brief for Defendant-Appellee,

pp. 14-15) is correct.

The Supreme Court has ruled that "Paragraph 33 of Patent Office

Administrative Order No. 3 (as amended, dated September 18, 1947)entitled 'Rules of Practice in the Philippines Patent Office relating tothe Registration of Copyright Claims' promulgated pursuant toRepublic Act 165, provides among other things that an intellectual

creation should be copyrighted thirty (30) days after its publication, ifmade in Manila, or within the (60) days if made elsewhere, failure ofwhich renders such creation public property." (Santos v. McCullough

Printing Company, 12 SCRA 324-325 [1964]. Indeed, if the general

public has made use of the object sought to be copyrighted for thirty

(30) days prior to the copyright application the law deems the objectto have been donated to the public domain and the same can no

longer be copyrighted.

A careful study of the records reveals that the song "Dahil Sa Iyo"which was registered on April 20, 1956 (Brief for Appellant, p. 10)

became popular in radios, juke boxes, etc. long before registration(TSN, May 28, 1968, pp. 3-5; 25) while the song "The Nearness OfYou" registered on January 14, 1955 (Brief for Appellant, p. 10) had

become popular twenty five (25) years prior to 1968, (the year of thehearing) or from 1943 (TSN, May 28, 1968, p. 27) and the songs"Sapagkat Ikaw Ay Akin" and "Sapagkat Kami Ay Tao Lamang" both

registered on July 10, 1966, appear to have been known and sang by

the witnesses as early as 1965 or three years before the hearing in1968. The testimonies of the witnesses at the hearing of this case onthis subject were unrebutted by the appellant. (Ibid, pp. 28; 29 and

30).

Under the circumstances, it is clear that the musical compositions inquestion had long become public property, and are therefore beyond

the protection of the Copyright Law.

PREMISES CONSIDERED, the appealed decision of the Court ofFirst Instance of Manila in Civil Case No. 71222 is hereby

AFFIRMED.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Padilla, Bidin and Cortes, JJ.,

concur.

Alampay, J., took no part.


17/44

[G.R. No. 108946. January 28, 1999]

FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC.,petitioners, vs. FRANKLIN DRILON GABRIEL ZOSA,WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY

FRANCISCO, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari. Petitioners seek to annul the

resolution of the Department of Justice, dated August 12, 1992, inCriminal Case No. Q-92-27854, entitled Gabriel Zosa, et al. v. CityProsecutor of Quezon City and Francisco Joaquin, Jr., and its

resolution, dated December 3, 1992, denying petitioner Joaquinsmotion for reconsideration.

Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of

Certificate of Copyright No. M922, dated January 28, 1971, of Rhodaand Me, a dating game show aired from 1970 to 1977.

On June 28, 1973, petitioner BJPI submitted to the NationalLibrary an addendum to its certificate of copyright specifying the

shows format and style of presentation.

On July 14, 1991, while watching television, petitioner FranciscoJoaquin, Jr., president of BJPI, saw on RPN Channel 9 an episode ofIts a Date, which was produced by IXL Productions, Inc. (IXL). On

July 18, 1991, he wrote a letter to private respondent Gabriel M.Zosa, president and general manager of IXL, informing Zosa thatBJPI had a copyright to Rhoda and Me and demanding that IXL

discontinue airing Its a Date.

In a letter, dated July 19, 1991, private respondent Zosa

apologized to petitioner Joaquin and requested a meeting to discussa possible settlement. IXL, however, continued airing Its a Date,prompting petitioner Joaquin to send a second letter on July 25, 1991

in which he reiterated his demand and warned that, if IXL did notcomply, he would endorse the matter to his attorneys for proper legalaction.

Meanwhile, private respondent Zosa sought to register IXLscopyright to the first episode of Its a Date for which it was issued by

the National Library a certificate of copyright on August 14, 1991.

Upon complaint of petitioners, an information for violation ofP.D. No. 49 was filed against private respondent Zosa together withcertain officers of RPN Channel 9, namely, William Esposo, Felipe

Medina, and Casey Francisco, in the Regional Trial Court of QuezonCity where it was docketed as Criminal Case No. 92-27854 and

assigned to Branch 104 thereof. However, private respondent Zosasought a review of the resolution of the Assistant City Prosecutorbefore the Department of Justice.

On August 12, 1992, respondent Secretary of Justice Franklin

M. Drilon reversed the Assistant City Prosecutors findings anddirected him to move for the dismissal of the case against privaterespondents. [1]

Petitioner Joaquin filed a motion for reconsideration, but his

motion was denied by respondent Secretary of Justice on December3, 1992. Hence, this petition. Petitioners contend that:

1. The public respondent gravely abused his discretionamounting to lack of jurisdiction when he invoked non-

presentation of the master tape as being fatal to theexistence of probable cause to prove infringement,despite the fact that private respondents never raised


18/44

the same as a controverted issue.

2. The public respondent gravely abused his discretion

amounting to lack of jurisdiction when he arrogated

unto himself the determination of what iscopyrightable - an issue which is exclusively within the

jurisdiction of the regional trial court to assess in aproper proceeding.

Both public and private respondents maintain that petitionersfailed to establish the existence of probable cause due to their failureto present the copyrighted master videotape of Rhoda and Me. They

contend that petitioner BJPIs copyright covers only a specific episodeof Rhoda and Meand that the formats or concepts of dating gameshows are not covered by copyright protection under P. D. No. 49.

Non-Assignment of Error

Petitioners claim that their failure to submit the copyrightedmaster videotape of the television show Rhoda and Me was notraised in issue by private respondents during the preliminary

investigation and, therefore, it was error for the Secretary of Justice toreverse the investigating prosecutors finding of probable cause on

this ground.

A preliminary investigation falls under the authority of the stateprosecutor who is given by law the power to direct and controlcriminal actions.[2] He is, however, subject to the control of theSecretary of Justice. Thus, Rule 112, 4 of the Revised Rules of

Criminal Procedure, provides:

SEC. 4. Duty of investigating fiscal.- If theinvestigating fiscal finds cause to hold the respondent fortrial, he shall prepare the resolution and corresponding

information. He shall certify under oath that he, or as

shown by the record, an authorized officer, has personallyexamined the complainant and his witnesses, that there isreasonable ground to believe that a crime has been

committed and that the accused is probably guilty thereof,that the accused was informed of the complaint and of theevidence submitted against him and that he was given anopportunity to submit controverting evidence. Otherwise,

he shall recommend dismissal of the complaint.

In either case, he shall forward the records of the caseto the provincial or city fiscal or chief state prosecutor withinfive (5) days from his resolution. The latter shall takeappropriate action thereon within ten (10) days from receipt

thereof, immediately informing the parties of said action.

No complaint or information may be filed or dismissedby an investigating fiscal without the prior written authorityor approval of the provincial or city fiscal or chief stateprosecutor.

Where the investigating assistant fiscal recommendsthe dismissal of the case but his findings are reversed bythe provincial or city fiscal or chief state prosecutor on theground that a probable cause exists, the latter may, by

himself, file the corresponding information against therespondent or direct any other assistant fiscal or stateprosecutor to do so, without conducting another preliminary

investigation.

If upon petition by a proper party, the Secretary of

Justice reverses the resolution of the provincial or city fiscalor chief state prosecutor, he shall direct the fiscal


19/44

concerned to file the corresponding information without

conducting another preliminary investigation or to dismissor move for dismissal of the complaint or information.

In reviewing resolutions of prosecutors, the Secretary of Justiceis not precluded from considering errors, although unassigned, for thepurpose of determining whether there is probable cause for filing

cases in court. He must make his own finding of probable cause andis not confined to the issues raised by the parties during preliminaryinvestigation. Moreover, his findings are not subject to review unless

shown to have been made with grave abuse.

Opinion of the Secretary of Justice

Petitioners contend, however, that the determination of thequestion whether the format or mechanics of a show is entitled tocopyright protection is for the court, and not the Secretary of Justice,

to make. They assail the following portion of the resolution of therespondent Secretary of Justice:

[T]he essence of copyright infringement is the copying, inwhole or in part, of copyrightable materials as defined and

enumerated in Section 2 of PD. No. 49. Apart from themanner in which it is actually expressed, however, the idea ofa dating game show is, in the opinion of this Office, a non-

copyrightable material. Ideas, concepts, formats, or schemesin their abstract form clearly do not fall within the class of

works or materials susceptible of copyright registration asprovided in PD. No. 49.[3] (Emphasis added.)

It is indeed true that the question whether the format ormechanics of petitioners television show is entitled to copyright

protection is a legal question for the court to make. This does not,

however, preclude respondent Secretary of Justice from making apreliminary determination of this question in resolving whether thereis probable cause for filing the case in court. In doing so in this case,

he did not commit any grave error.

Presentation of Master Tape

Petitioners claim that respondent Secretary of Justice gravely

abused his discretion in ruling that the master videotape should havebeen presented in order to determine whether there was probable

cause for copyright infringement. They contend that 20th Century

Fox Film Corporation v. Court of Appeals,[4]on which respondentSecretary of Justice relied in reversing the resolution of the

investigating prosecutor, is inapplicable to the case at bar because inthe present case, the parties presented sufficient evidence whichclearly establish linkages between the copyrighted show Rhoda and

Me and the infringing TV show Its a Date.[5]

The case of 20th Century Fox Film Corporation involved raids

conducted on various videotape outlets allegedly selling or renting outpirated videotapes. The trial court found that the affidavits of NBI

agents, given in support of the application for the search warrant,were insufficient without the master tape. Accordingly, the trial courtlifted the search warrants it had previously issued against the

defendants. On petition for review, this Court sustained the action ofthe trial court and ruled:[6]

The presentation of the master tapes of the copyrighted films fromwhich the pirated films were allegedly copied, was necessary for thevalidity of search warrants against those who have in their possession

the pirated films. The petitioners argument to the effect that thepresentation of the master tapes at the time of application may not be


20/44

necessary as these would be merely evidentiary in nature and not

determinative of whether or not a probable cause exists to justify theissuance of the search warrants is not meritorious. The court cannotpresume that duplicate or copied tapes were necessarily reproduced

from master tapes that it owns.

The application for search warrants was directed against video tape

outlets which allegedly were engaged in the unauthorized sale andrenting out of copyrighted films belonging to the petitioner pursuant toP.D. 49.

The essence of a copyright infringement is the similarity or at leastsubstantial similarity of the purported pirated works to the copyrighted

work. Hence, the applicant must present to the court the copyrighted

films to compare them with the purchased evidence of the videotapes allegedly pirated to determine whether the latter is an

unauthorized reproduction of the former. This linkage of thecopyrighted films to the pirated films must be established to satisfythe requirements of probable cause. Mere allegations as to theexistence of the copyrighted films cannot serve as basis for the

issuance of a search warrant.

This ruling was qualified in the later case of Columbia Pictures, Inc. v.Court of Appeals[7]in which it was held:

In fine, the supposedpronunciamentoin said case regarding thenecessity for the presentation of the master tapes of the copyrighted

films for the validity of search warrants should at most be understoodto merely serve as a guidepost in determining the existence ofprobable cause in copyright infringement cases where there is doubt

as to the true nexus between the master tape and the pirated copies.An objective and careful reading of the decision in said case couldlead to no other conclusion than that said directive was hardly

intended to be a sweeping and inflexible requirement in all or similar

copyright infringement cases. . . .[8]

In the case at bar, during the preliminary investigation,petitioners and private respondents presented written descriptions ofthe formats of their respective televisions shows, on the basis ofwhich the investigating prosecutor ruled:

As may [be] gleaned from the evidence on record, the substance of

the television productions complainants RHODA AND ME andZosas ITS A DATE is that two matches are made between a maleand a female, both single, and the two couples are treated to a nightor two of dining and/or dancing at the expense of the show. Themajor concepts of both shows is the same. Any difference appearmere variations of the major concepts.

That there is an infringement on the copyright of the show RHODAAND ME both in content and in the execut ion of the videopresentation are established because respondents ITS A DATE ispractically an exact copy of complainants RHODA AND MEbecause of substantial similarities as follows, to wit:

RHODA AND ME ITS A DATE

Set I Set I

a. Unmarried participant a. sameof one gender (searcher) appears on one side of a

divider, while three (3) unmarried participants of the other

gender are on the other side of the divider. Thisarrangement is done to ensure that the searcher doesnot see the searchees.


21/44

b. Searcher asks a question

b. same

to

bea

ns

wer

ed

b

ye

ach

of

th

es

ear

che

es.

Th

e

pu


22/44

r

pos

eis

to

de

ter

min

ew

hoa

mon

g

the

sea

rch

ees

is

th

em

ost

com

pa

ti


23/44

b

le

with

th

es

ear

che

r.

c. Searcher speculates on the c. same

match to the searchee.

d. Selection is made by the d. Selection is

use of compute (sic) methods, based on the

or by the way questions are answer of theanswered, or similar methods. Searchees.

Set 2 Set 2

Same as above with the genders same

of

the

se

arc

her

a

ndsearc


24/44

h

ees

int

erc

han

ged

.[9

]

Petitioners assert that the format of Rhoda and Meis a productof ingenuity and skill and is thus entitled to copyright protection. It istheir position that the presentation of a point-by-point comparison ofthe formats of the two shows clearly demonstrates the nexus between

the shows and hence establishes the existence of probable cause forcopyright infringement. Such being the case, they did not have to

produce the master tape.

To begin with, the format of a show is not copyrightable. Section2 of P.D. No. 49,[10] otherwise known as the DECREE ONINTELLECTUAL PROPERTY, enumerates the classes of work

entitled to copyright protection, to wit:

Section 2. The rights granted by this Decree shall, from the moment

of creation, subsist with respect to any of the following classes ofworks:

(A) Books, including composite and cyclopedic works, manuscripts,directories, and gazetteers;

(B) Periodicals, including pamphlets and newspapers;

(C) Lectures, sermons, addresses, dissertations prepared for oral

delivery;

(D) Letters;

(E) Dramatic or dramatico-musical compositions; choreographicworks and entertainments in dumb shows, the acting form of which is

fixed in writing or otherwise;

(F) Musical compositions, with or without words;

(G) Works of drawing, painting, architecture, sculpture, engraving,lithography, and other works of art; models or designs for works ofart;

(H) Reproductions of a work of art;

(I) Original ornamental designs or models for articles of manufacture,whether or not patentable, and other works of applied art;

(J) Maps, plans, sketches, and charts;


25/44

(K) Drawings or plastic works of a scientific or technical character;

(L) Photographic works and works produced by a process analogous

to photography; lantern slides;

(M) Cinematographic works and works produced by a processanalogous to cinematography or any process for making audio-visual

recordings;

(N) Computer programs;

(O) Prints, pictorial illustrations advertising copies, labels, tags, andbox wraps;

(P) Dramatizations, translations, adaptations, abridgements,arrangements and other alterations of literary, musical or artistic

works or of works of the Philippine government as herein defined,which shall be protected as provided in Section 8 of this Decree.

(Q) Collections of literary, scholarly, or artistic works or of worksreferred to in Section 9 of this Decree which by reason of the

selection and arrangement of their contents constitute intellectualcreations, the same to be protected as such in accordance withSection 8 of this Decree.

(R) Other literary, scholarly, scientific and artistic works.

This provision is substantially the same as 172 of theINTELLECTUAL PROPERTY CODE OF THE PHILIPPINES (R.A.No. 8293).[11]The format or mechanics of a television show is not

included in the list of protected works in 2 of P.D. No. 49. For thisreason, the protection afforded by the law cannot be extended to

cover them.

Copyright, in the strict sense of the term, is purely a statutory right. It

is a new or independent right granted by the statute, and not simply a

pre-existing right regulated by the statute. Being a statutory grant,the rights are only such as the statute confers, and may be obtained

and enjoyed only with respect to the subjects and by the persons, andon terms and conditions specified in the statute.[12]

Since . . . copyright in published works is purely a statutory creation,a copyright may be obtained only for a work falling within the statutoryenumeration or description.[13]

Regardless of the historical viewpoint, it is authoritatively settled in

the United States that there is no copyright except that which isboth created and secured by act of Congress . . . .[14]

P.D. No. 49, 2, in enumerating what are subject to copyright,refers to finished works and not to concepts. The copyright does notextend to an idea, procedure, process, system, method of operation,

concept, principle, or discovery, regardless of the form in which it isdescribed, explained, illustrated, or embodied in such work.[15]Thus,the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINESprovides:

Sec. 175. Unprotected Subject Matter. - Notwithstanding theprovisions of Sections 172 and 173, no protection shall extend, underthis law, to any idea, procedure, system, method or operation,concept, principle, discovery or mere data as such, even if they are

expressed, explained, illustrated or embodied in a work; news of theday and other miscellaneous facts having the character of mere itemsof press information; or any official text of a legislative, administrative

or legal nature, as well as any official translation thereof.


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What then is the subject matter of petitioners copyright? This

Court is of the opinion that petitioner BJPIs copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling withinthe class of works mentioned in P.D. 49, 2(M), to wit:

Cinematographic works and works produced by a process analogous

to cinematography or any process for making audio-visual recordings;

The copyright does not extend to the general concept or format of its

dating game show. Accordingly, by the very nature of the subject ofpetitioner BJPIs copyright, the investigating prosecutor should havethe opportunity to compare the videotapes of the two shows.

Mere description by words of the general format of the twodating game shows is insufficient; the presentation of the master

videotape in evidence was indispensable to the determination of theexistence of probable cause. As aptly observed by respondent

Secretary of Justice:

A television show includes more than mere words can describebecause it involves a whole spectrum of visuals and effects,video and audio, such that no similarity or dissimilarity may be

found by merely describing the general copyright/format of bothdating game shows.[16]

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

Puno, Quisumbing, andBuena, JJ., concur.Bellosillo, J., (Chairman), no part due to relation to one of the parties.

G.R. No. 76193 November 9, 1989

UNITED FEATURE SYNDICATE, INC., petitioner,

vs. MUNSINGWEAR CREATION MANUFACTURING COMPANY,

respondent.

Quasha, Asperilla, Ancheta, Pena and Nolasco for petitioner.

Jaime G. Manzano for private respondent.

PARAS, J.:

This is a petition for review on certiorari filed by United Feature

Syndicate Inc., seeking to set aside the Resolution of the SeventhDivision of the Court of Appeals * dated September 16, 1986

dismissing the appeal of petitioner-appellant for having been filed outof time and denying its Motion for Reconsideration for lack of merit in

its Resolution dated October 14, 1986.

The Resolution dismissing the appeal, reads as follows:

We agree with the Philippine Patent Office and respondent appelleethat the decision of the aforementioned office dated October 2, 1984

had already become final and executory at the time the Notice of

Appeal was filed.

Our reasons for this conclusions are borne out by the following facts:

a) On October 2, 1984, the decision sought to be appealed wasrendered by the Philippine Patent Office and a copy thereof wasreceived by counsel for petitioner-appellant on October 3, 1984 not

October 9, 1984 as stated in the Notice of Appeal. There can be nodoubt about the decision having been received by petitioner-appellant's counsel on October 3, 1984 for this is clearly written in the


27/44

Notice of Decision (p. 61, Original Record), and in point of fact the

date of receipt cannot be October 9, 1984, as declared in the Noticeof Appeal (p. 1, Rollo), because in the motion for reconsiderationsubsequently filed by petitioner-appellant it was stated that a copy of

the decision was received on October 4, 1984 (p. 80, OriginalRecord).

b) On October 18, 1984 as shown in the stamp mark of thePhilippine Patent Office (p. 80, Original Record) or on the 15th andlast day either for appealing or for moving for reconsideration,

petitioner-appellant filed a motion for reconsideration.

Sadly and unexplainably for a veteran law office, said motion did not

contain or incorporate a notice of hearing.

c) Possibly realizing the fatal defect in its motion for reconsideration,petitioner-appellant subsequently filed a motion to set for hearing its

motion for reconsideration. This was done, however, only on October

31, 1984 (p. 162, Original Record).

The motion for reconsideration filed on the last day, fatally failing as itdid to contain a notice of hearing, said pleading did not interrupt the

period for appealing, for the motion was nothing but a piece of scrappaper (Agricultural and Industrial Marketing, Inc. v. Court of Appeals, 118 SCRA [1982] 492; Republic Planters Bank v. Intermediate

Appellate Court, 13 SCRA [1984] 631).

This deadly and moral deficiency in the motion for reconsideration,

therefore, resulted in the decision of the Philippine Patent Officebeing final and executory on October 19, 1984, the day after themotion for reconsideration was filed, said motion having been filed on

the 15th and last day for appealing.

WHEREFORE, the motion of respondent appellee is hereby granted

and the appeal dismissed.

SO ORDERED. (Rollo 42-43)

This case arose from petition filed by petitioner for the cancellation ofthe registration of trademark CHARLIE BROWN (Registration No.SR. 4224) in the name of respondent MUNSINGWEAR in Inter Partes

Case No. 1350 entitled "United Feature Syndicate, Inc. v.Munsingwear Creation Mfg. Co.", with the Philippine Patent Officealleging that petitioner is damaged by the registration of the

trademark CHARLIE BROWN of T-Shirts under Class 25 with theRegistration No. SR-4224 dated September 12, 1979 in the name ofMunsingwear Creation Manufacturing Co., Inc., on the following

grounds: (1) that respondent was not entitled to the registration of themark CHARLIE BROWN, & DEVICE at the time of application for

registration; (2) that CHARLIE BROWN is a character creation or apictorial illustration, the copyright to which is exclusively ownedworldwide by the petitioner; (3) that as the owner of the pictorial

illustration CHARLIE BROWN, petitioner has since 1950 andcontinuously up to the present, used and reproduced the same to theexclusion of others; (4) that the respondent-registrant has no bona

fide use of the trademark in commerce in the Philippines prior to itsapplication for registration. (Petition, p. 2, Rollo, p. 8)

On October 2, 1984 the Director of the Philippine Patent Officerendered a decision in this case holding that a copyright registrationlike that of the name and likeness of CHARLIE BROWN may not

provide a cause of action for the cancellation of a trademarkregistration, (Petition, p. 4; Rollo, p. 10 )

Petitioner filed a motion for reconsideration of the decision rendered

by the Philippine Patent Office which was denied by the Director of


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said office on the ground that the Decision No. 84-83 was already

final and executory (Petition, Rollo, pp. 11-12).

From this decision, petitioner-appellant appealed to the Court ofAppeals and respondent court in its resolution dated September 16,

1986 denied the appeal. While the Motion for Reconsideration wasfiled on time, that is, on the last day within which to appeal, still it is a

mere scrap of paper because there was no, date, of hearing statedtherein.

Subsequently, petitioner-appellant filed a motion for reconsideration

which public respondent denied for lack of merit( Annex "B", Rollo p.

45)..

Hence this petition for review on certiorari.

In the resolution of April 6, 1987, the petition was given due course.

In its petition (Rollo, p. 10) and in its memorandum (Rollo, p. 97),

petitioner-appellant raised the following legal issues:

I

WHETHER THE RESPONDENT COURT OF APPEALS ACTED INEXCESS OF JURISDICTION AND/OR COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT BASED ITS RESOLUTION INDISMISSING ITS APPEAL ON STRICT TECHNICAL RULES OFPROCEDURE AS ENUNCIATED IN RULE 15 OF THE RULES OF

COURT INSTEAD OF RELYING ON THE POLICY OF THEPHILIPPINE PATENT OFFICE AS STRESSED IN RULE 169, AS

AMENDED, OF THE RULES OF PRACTICE IN TRADEMARKCASES.

II

WHETHER THE RESPONDENT COURT OF APPEALSCOMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TOEXCESS OF JURISDICTION WHEN BY DISMISSING THE APPEAL

TO IT FROM THE DECISION OF THE DIRECTOR OF PATENTS, ITKNOWINGLY DISREGARDED ITS OWN DECISION IN AC-GR. SP.

NO. 0342, WHICH WAS AFFIRMED BY THIS HONORABLESUPREME COURT TO THE EFFECT THAT A COPYRIGHTEDCHARACTER MAY NOT BE APPROPRIATED AS A TRADEMARK

BY ANOTHER UNDER PRESIDENTIAL DECREE NO. 49.

III

WHETHER, ASSUMING ARGUENDO, BUT ONLY ASSUMING,THAT THE DECISION OF THE DIRECTOR OF PATENTS IN THECASE AT BAR HAD ALREADY BECOME FINAL WHEN IT WAS

APPEALED TO THE COURT OF APPEALS, THE LATTER, BYREASON OF THE SUPERVENING FACTS AFTER THE DECISIONAPPEALED FROM WAS RENDERED, SHOULD HAVE

HARMONIZED THE DECISION WITH LAW, THE DEMANDS OF

JUSTICE AND EQUITY.

The petitioner is impressed with merit.

Petitioner's contention that the purpose of a notice of hearing to theadverse party is to afford him an opportunity to resist the motion,more particularly the motion for reconsideration filed by its company

is well taken. Said purpose was served when Munsingwear filed itsopposition thereto on November 20, 1984 and cured the technicaldefect of lack of notice of hearing complained of (Rollo, p. 52).

Otherwise stated such shortcomings of petitioner as to compliancewith procedural requirements in taking its appeal cannot be deemed


29/44

sufficient to deprive it of a chance to secure a review by this court in

order to obtain substantial justice; more so where liverality accordedto the petitioner becomes compelling because of the ostensible meritof petitioner's case (Olango v. Court of First Instance of Misamis

Oriental, 121 SCRA 338 [1983]).

Moreover, in Siguenza v. Court of Appeals, (137 SCRA 570 [1985])

the Court stressed that the right to appeal should not be lightlydisregarded by a stringent application of rules of procedure especiallywhere the appeal is on its face meritorious and the interest of

substantial justice would be served by permitting the appeal.

As enunciated in the case of Castro v. Court of Appeals (123 SCRA782, [1983]) the importance and real purpose of the remedy of appeal

was stressed as follows:

An appeal is an essential part of oar judicial system. We have

advised the courts to proceed with caution so as not to deprive aparty of the right to appeal. (National Waterworks and SewerageAuthority v. Municipality of Libmanan, 97 SCRA 138) and instructed

that every party-litigant should beafforded the amplest opportunity forthe proper and just disposition of his cause, freed from the constraintsof technicalities. (A-One Feeds, Inc. v. Court of Appeals, 100 SCRA

590).

The rules of procedure are not to be applied in a very rigid andtechnical sense. The rules of procedure are used only to help securenot override substantial justice. (Gregorio v. Court of Appeals, 72SCRA 120), therefore, we ruled in Republic v. Court of Appeals (83

SCRA 453) that a six day delay in the perfection of the appeal doesnot warrant its dismissal. And again in Ramos v. Bagaso, 96 SCRA395, this Court held that the delay of four (4) days in filing a notice of

appeal and a motion for extension of time to file a record on appeal

can be excused on the basis of equity.

It was further emphasized that we allowed the filing of an appeal insome cases where a stringent application of the rules would havedenied it, or when to do so would serve the demands of substantial

justice and in the exercise of our equity jurisdiction (Serrano v. Court

of Appeals, 139 SCRA 179 [1085].)

In the case at bar, the petitioner's delay in filing their record on appealshould not be strictly construed as to deprive them of the right toappeal especially since on its face the appeal appears to be

impressed with merit. (Emphasis supplied). All aforementioned casesare cited in G.R. No. 76595, Pacific Asia Overseas Shipping

Corporation v. NLRC, et al., May 6, 1988.

Procedural technicality should not prevail over substantive rights of a

party to appeal (NEA v. CA, 126 SCRA 394).

Moreover, a judgment of the Court of Appeals that become final by

reason of the mistake of the herein petitioner's lawyer may still bereviewed on appeal by the Supreme Court particularly where theSupreme Court already gave due course to the petition for review

(Ernesto v. Court of Appeals, 116 SCRA 755 [1982]).

Where strong considerations of substantial justice are manifest in the

petition, this Court may relax the stringent application of technicalrules in the exercise of equity jurisdiction. In addition to the basicmerits of the main case, such petition usually embodies justifying

circumstances which warrant our heeding the petitioner's cry forjustice, inspite of the earlier negligence of counsel (Serrano v. Courtof Appeals et al., 139 SCRA 179 [1985]).

In a number of cases, this Court in the exercise of equity jurisdiction


30/44

decided to disregard technicalities in order to resolve the case on its

merits based on the evidence (St. Peter Memorial Park, Inc. et al. v.Cleofas, 121 SCRA 287, [1983]; Helmuth, Jr. v. People of the

Philippines, 112 SCRA 573 [1983]).

This case was brought before this Court for the resolution of thedismissal of the appeal filed by petitioner-appellant from the decision

of the Director of the Philippines Patent Office for being filed out oftime. The normal action to take thereafter, would be to remand thiscase to the Court of Appeals for further proceedings. However, in line

with jurisprudence, such time consuming procedure may be properlydispensed with to resolve the issue (Quisumbing v. Court of Appeals,122 SCRA 709 [1983]) where there is enough basis to end the basic

controversy between the parties here and now. In the case at bardispensing with such procedural steps would not anyway affectsubstantially the merits of their respective claims as held in Velasco v.Court of Appeals, (95 SCRA 621 [1980] cited in Ortigas & Co. Ltd. v.

Ruiz, 148 SCRA [1987] hence the need for this Court to broaden itsinquiry in this case land decide the same on the merits rather thanmerely resolve the procedural question raised (Dorado v. Court of

Appeals, 153 SCRA 420 [1987]; De Lima v. Laguna Tayabas Co.,160 SCRA 70 [1988]).

Petitioner contends that it will be damaged by the registration of thetrademark CHAR

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