J.A.B. Bulao & Associates

CASE 2017-0032: EXPRESS PADALA (ITALIA) S.P.A. NOW BDO REMITTANCE (ITALIA) S.P.A. VS. HELEN M. OCAMPO (G.R. NO. 202505, 06 SEPT 2017, JARDELEZA, J.) (SUBJECT/S: SUBSTITUTED SERVICE OF SUMMONS) (BRIEF TITLE: EXPRESS PADALA VS OCAMPO)

 DISPOSITIVE:

“WHEREFORE, the petition is DENIED. The Decision dated January 5, 2012 and Resolution dated June 27, 2012 of the Court of Appeals in CA-G.R. SP No. 113475 are AFFIRMED insofar as there was no valid service of summons. The Decision dated September 14, 2009 of the Regional Trial Court, Branch 212, Mandaluyong City in Civil Case No. MCOS-3775 is declared VOID.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

WHAT HAPPENED IN THIS CASE?

RESPONDENT OCAMPO, A REMITTANCE PROCESSOR OF BDO REMITTANCE  WAS DISMISSED FOR MISAPPROPRIATING EURO 24,035.60 AND WAS CONVICTED OF A CRIME IN ITALY.   PETITIONER BDO REMITTANCE FILED IN MANDALUYONG RTC CASE FOR RECOGNITION OF JUDGMENT IN ITALY AND FOR CANCELLATION OF THE PASSPORT OF RESPONDENT. SUMMONS WAS SERVED BY SUBSTITUTED SERVICE BECAUSE THE PRESENT OCCUPANT OF THE LAST ADDRESS OF OCAMPO SAID THAT HE IS ONLY A CARETAKER OF THE HOUSE AND THAT OCAMPO IS NOW LIVING IN ITALY. RTC RECEIVED EVIDENCE EX PARTE AND ISSUED A DECISION AGAINST OCAMPO. C.A. REVERSED THE DECISION ON GROUND THAT THERE WAS NO VALID SERVICE OF SUMMONS. S.C. AFFIRMED.

WHAT IS THE GENERAL RULE IN SERVICE OF SUMMONS?

THAT SUMMONS MUST BE SERVED PERSONALLY ON THE DEFENDANT.

“Section 6, Rule 14 of the Rules of Court provides:

Sec. 6. Service in person on defendant. -Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

WHAT ARE THE EXCEPTIONS?

BY SUBSTITUTED SERVICE AND BY PUBLICATION.

 “For justifiable reasons, however, other modes of serving summons may be resorted to. When the defendant cannot be served personally within a reasonable time after efforts to locate him have failed, the rules allow summons to be served by substituted service. Substituted service is effected by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.21

When the defendant’s whereabouts are unknown, the rules allow service of summons by publication.22 As an exception to the preferred mode of service, service of summons by publication may only be resorted to when the whereabouts of the defendant are not only unknown, but cannot be ascertained by diligent inquiry. The diligence requirement means that there must be prior resort to personal service under Section 7 and substituted service under Section 8, and proof that these modes were ineffective before summons by publication may be allowed. 23 This mode also requires the plaintiff to file a written motion for leave of court to effect service of summons by publication, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.24”

WHAT WAS THE RULING OF THE CA?

SINCE OCAMPO’S WHEREABOUTS ARE UNKNOWN AND CANNOT BE ASCERTAINED BY DILIGENT INQUIRY THE SERVICE OF SUMMONS MAY BE EFFECTED ONLY BY PUBLICATION.

“In the present case, the sheriff resorted to substituted service upon Ocampo through her uncle, who was the caretaker of Ocampo’s old family residence in Tanauan, Batangas. The CA held that substituted service was improperly resorted to. It found that since Ocampo’ s “whereabouts are unknown and cannot be ascertained by diligent inquiry x x x service may be effected only by publication in a newspaper of general circulation.”25

WHAT DOES SUBSTITUTED SERVICE PRESUPPOSES?

THAT THE PLACE WHERE THE SUMMONS IS BEING SERVED IS THE DEFENDANT’S CURRENT RESIDENCE OR OFFICE/REGULAR PLACE OF BUSINESS.

THUS, WHERE THE DEFENDANT NEITHER RESIDES NOR HOLDS OFFICE IN THE ADDRESS STATED IN THE SUMMONS, SUBSTITUTED SERVICE CANNOT BE RESORTED TO.

“As we explained in Keister v. Navarro:

Under the Rules, substituted service may be effect[ ed] (a) by leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof The terms “dwelling house” or “residence” are generally held to refer to the time of service, hence it is not sufficient “to leave the copy at defendant’s former dwelling house, residence, or place of abode, as the case may be, after his removal therefrom.” They refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. Similarly, the terms “office” or “regular place of business” refer to the office or place of business of defendant at the time of service. Note that the rule designates the persons to whom copies of the process may be left. The rule presupposes that such a relation of confidence exists between the person with whom the copy is left and the defendant and, therefore, assumes that such person will deliver the process to defendant or in some way give him notice thereof.27 (Italics in the original, citations omitted.)”

WHY WAS OCAMPO’S CURRENT ADDRESS UNCERTAIN?

BASED ON THE REPORT OF THE SHERIFF AND AVERMENT OF BDO REMITTANCE.

“The report categorically stated that “defendant Helen M. Ocampo and her family were already in Italy,”28 without, however, identifying any specific address. Even BDO Remittance itself admitted in its petition for recognition that Ocampo’ s “whereabouts in Italy are no longer certain.”29 This, we note, is the reason why in alleging the two addresses of Ocampo, one in Italy and one in the Philippines, BDO Remittance used the phrase “last known [address ]”30 instead of the usual “resident of.” Not being a resident of the address where the summons was served, the substituted service of summons is ineffective.”

BUT BDO CITED THE CASE OF PALMA VS. GALVEZ. IS THIS CASE NOT APPLICABLE?

NOT APPLICABLE BECAUSE IN THAT CASE SERVICE OF SUMMONS WAS SERVED (BY SUBSTITUTED SERVICE) TO A PERSON WHO WAS TEMPORARILY OUT OF THE COUNTRY.

“BDO Remittance’s reliance on Palma v. Galvez31 is misplaced for the simple reason that the case involved service of summons to a person who is temporarily out of the country. In this case, however, Ocampo’s sojourn in Italy cannot be classified as temporary considering that she already resides there, albeit her precise address was not known.”

HOW SHALL THE MODES OF SERVICE OF SUMMONS BE OBSERVED?

MUST BE STRICTLY FOLLOWED.

“The purpose of this is to afford the defendant an opportunity to be heard on the claim against him.”

. . . . .

“The service of summons is a vital and indispensable ingredient of a defendant’s constitutional right to due process. As a rule, if a defendant has not been validly summoned, the court acquires no jurisdiction over his person, and a judgment rendered against him is void.34 Since the RTC never acquired jurisdiction over the person of Ocampo, the judgment rendered by the court could not be considered binding upon her.”

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

SCD-2017-0032-Express Padala (Italia) S.P.A. now BDO Remittance (Italia) S.P.A. Vs. Helen M. Ocampo

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CASE 2017-0031: SOCIETE DES PRODUITS, NESTLE, S.A., PETITIONER, VERSUS PUREGOLD PRICE CLUB INC. (G.R NO. 217194, 06 , CARPIO, ACTING C.J.) (SUBJECT/S: CERTIFICATION ON NON-FORUM SHOPPING BY CORPORATION MUST HAVE BOARD RESOLUTION; WHEN IS TRADEMARK NOT REGISTRABLE; TWO TESTS TO DETERMINE WHETHER CONFUSION OCCURS AMONG COMPETING TRADEMARKS) (BRIEF TITLE: NESTLE VS PUREGOLD)

DISPOSITIVE:

“WHEREFORE, we DENY the petition. We AFFIRM the 15 May 2014 Resolution and the 14 October 2014 Resolution of the Court of Appeals in CA-G.R. SP No. 134592.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

WHAT HAPPENED IN THIS CASE?

 PUREGOLD FILED APPLICATION FOR TRADEMARK “COFFEE MATCH”. NESTLE OPPOSSED ON THE GROUND THAT IT HAS ALREADY REGISTERED THE MARK “COFFEE-MATE”.

IPO DISMISSED THE OPPOSITION OF NESTLE ON THE GROUND THAT THE CERTIFICATION OF NON-FORUM SHOPPING WAS NOT SUPPORTED BY BOARD RESOLUTION. FURTHER, THAT THE MARKS ARE DIFFERENT AND NOT CONFUSING. CA AFFIRMED. SC AFFIRMED.

SPECIFICALLY WHAT WAS THE OPPOSITION OF NESTLE?

NESTLE ALLEGED THAT IT IS THE EXCLUSIVE OWNER OF THE “COFFEE-MATE” TRADEMARK AND THAT THERE IS CONFUSING SIMILARITY BETWEEN THE “COFFEE-MATE” TRADEMARK AND PUREGOLD’S “COFFEE MATCH” TRADEMARK. NESTLE ALLEGED THAT “COFFEE-MATE” HAS BEEN DECLARED AN INTERNATIONALLY WELL-KNOWN MARK AND PUREGOLD’S USE OF “COFFEE MATCH” WOULD INDICATE A CONNECTION WITH THE GOODS COVERED IN NESTLE’S “COFFEE-MATE” MARK BECAUSE OF ITS DISTINCT SIMILARITY. NESTLE CLAIMED THAT IT WOULD SUFFER DAMAGES IF THE APPLICATION WERE GRANTED SINCE PUREGOLD’S “COFFEE MATCH” WOULD LIKELY MISLEAD THE PUBLIC THAT THE MARK ORIGINATED FROM NESTLE.10

WHAT WAS THE DECISION OF THE IPO?

IPO DISMISSED THE OPPOSITION OF NESTLE FIRST BECAUSE NESTLE’S OPPOSITION WAS DEFECTIVE BECAUSE THE VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING ATTACHED TO NESTLE’S OPPOSITION DID NOT INCLUDE A BOARD OF DIRECTORS’ RESOLUTION OR SECRETARY’S CERTIFICATE STATING MR. DENNIS JOSE R. BAROT’S (BAROT) AUTHORITY TO ACT ON BEHALF OF NESTLE.

AND SECOND BECAUSE THE WORD “COFFEE” AS A MARK, OR AS PART OF A TRADEMARK, WHICH IS USED ON COFFEE AND SIMILAR OR CLOSELY RELATED GOODS, IS NOT UNIQUE OR HIGHLY DISTINCTIVE. NESTLE COMBINED THE WORD “COFFEE” WITH THE WORD “-MATE,” WHILE PUREGOLD COMBINED THE WORD “COFFEE” WITH THE WORD “MATCH.” WHILE BOTH NESTLE’S “-MATE” AND PUREGOLD’S “MATCH” CONTAIN THE SAME FIRST THREE LETTERS, THE LAST TWO IN PUREGOLD’S MARK RENDERED A VISUAL AND AURAL CHARACTER THAT MAKES IT EASILY DISTINGUISHABLE FROM NESTLE’S “COFFEE-MATE.”13 ALSO, THE LETTER “M” IN PUREGOLD’S MARK IS WRITTEN AS AN UPPER CASE CHARACTER AND THE EYES OF A CONSUMER WOULD NOT BE CONFUSED OR DECEIVED BY NESTLE’S “COFFEEMATE” WHERE THE LETTER “M” IS WRITTEN IN LOWER CASE. CONSEQUENTLY, THE CONSUMER CANNOT MISTAKE THE MARK AND THE PRODUCTS OF NESTLE AS THOSE OF PUREGOLD’S.14

WHAT WAS THE DECISION OF THE CA?

IT AFFIRMED THE DECISION OF THE IPO.

ON THE NON-FORUM SHOPPING CERTIFICATION WHAT WAS THE EXPLANATION OF NESTLE AND IS THEIR EXPLANATION SUFFICIENT?

NESTLE EXPLAINED THAT THE AUTHORITY OF BAROT TO SIGN THE CERTIFICATION WAS BASED ON AN SPA EXECUTED BY CELINE GEORGE.

THE SPA IS NOT SUFFICIENT BECAUSE IT WAS NOT ACCOMPANIED  BY A BOARD RESOLUTION OR SECRETARY’S CERTIFICATE FROM NESTLE SHOWING THAT CELINE JORGE WAS AUTHORIZED BY THE BOARD OF DIRECTORS OF NESTLE TO EXECUTE THE POWER OF ATTORNEY IN FAVOR OF BAROT.

THE COURTS ARE NOT EXPECTED TO TAKE JUDICIAL NOTICE OF BOARD RESOLUTIONS OR SECRETARY’S CERTIFICATES ISSUED BY CORPORATIONS.

WHAT IS A TRADEMARK?

A TRADEMARK IS ANY DISTINCTIVE WORD, NAME~ SYMBOL, EMBLEM, SIGN, OR DEVICE, OR ANY COMBINATION THEREOF, ADOPTED AND USED BY A MANUFACTURER OR MERCHANT ON HIS GOODS TO IDENTIFY AND DISTINGUISH THEM FROM THOSE MANUFACTURED, SOLD, OR DEALT BY OTHERS.

WHEN IS A TRADEMARK NOT REGISTRABLE?

SECTION 123 OF REPUBLIC ACT NO. 829346 (RA 8293) PROVIDES FOR TRADEMARKS WHICH CANNOT BE REGISTERED, TO WIT: THE MARK IS:

XX XX

( 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;

WHAT IS THE GRAVAMEN OF TRADEMARK INFRINGEMENT?

THE LIKELIHOOD OF CONFUSION.

HOW DO YOU DETERMINE WHETHER THERE IS 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.49

WHAT ARE THE TWO TESTS OF DETERMINING THE LIKELIHOOD OF CONFUSION?

THE DOMINANCY TEST AND THE HOLISTIC TEST.

WHAT IS THE DOMINANCY TEST?

THE DOMINANCY TEST FOCUSES ON THE SIMILARITY OF THE PREVALENT FEATURES OF THE COMPETING TRADEMARKS THAT MIGHT CAUSE CONFUSION AND DECEPTION.

IF THE COMPETING TRADEMARK CONTAINS THE MAIN, ESSENTIAL, AND DOMINANT FEATURES OF ANOTHER, AND CONFUSION OR DECEPTION IS LIKELY TO RESULT, LIKELIHOOD OF CONFUSION EXISTS.

THE QUESTION IS WHETHER THE USE OF THE MARKS INVOLVED IS LIKELY TO CAUSE CONFUSION OR MISTAKE IN THE MIND OF THE PUBLIC OR TO DECEIVE CONSUMERS.

WHAT IS THE HOLISTIC TEST?

IT 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.54

CAN “COFFEE” BE EXCLUSIVELY BE REGISTERED?

NO BECAUSE IT IS GENERIC OR DESCRIPTIVE OF THE GOODS THEY IDENTIFY.

THE RULE IS THAT GENERIC OR DESCRIPTIVE WORDS ARE NOT SUBJECT TO REGISTRATION AND BELONG TO THE PUBLIC DOMAIN.

SINCE COFFEE IS GENERIC HOW CAN THE REGISTRABILITY OF THE SUBJECT MARK “COFFEE MATCH” BE DETERMINED?

WE MUST LOOK AT THE WORD OR WORDS PAIRED WITH THE GENERIC OR DESCRIPTIVE WORD, IN THIS PARTICULAR CASE “-MATE” FOR NESTLE’S MARK AND “MATCH” FOR PUREGOLD’S MARK, TO DETERMINE THE DISTINCTIVENESS AND REGISTRABILITY OF PUREGOLD’S MARK “COFFEE MATCH.”

WHAT IS THE RULING OF THE SC IN THIS CASE:

THE DISTINCTIVE FEATURES OF BOTH MARKS ARE SUFFICIENT TO WARN THE PURCHASING PUBLIC WHICH ARE NESTLE’S PRODUCTS AND WHICH ARE PUREGOLD’S PRODUCTS.

WHILE BOTH “-MATE” AND “MATCH” CONTAIN THE SAME FIRST THREE LETTERS, THE LAST TWO LETTERS IN PUREGOLD’S MARK, “C” AND “H,” RENDERED A VISUAL AND AURAL CHARACTER THAT MADE IT EASILY DISTINGUISHABLE FROM NESTLE’S MARK. ALSO, THE DISTINCTIVENESS OF PUREGOLD’S MARK WITH TWO SEPARATE WORDS WITH CAPITAL LETTERS “C” AND “M” MADE IT DISTINGUISHABLE FROM NESTLE’S MARK WHICH IS ONE WORD WITH A HYPHENATED SMALL LETTER “-M” IN ITS MARK. IN ADDITION, THERE IS A PHONETIC DIFFERENCE IN PRONUNCIATION BETWEEN NESTLE’S “-MATE” AND PUREGOLD’S “MATCH.” AS A RESULT, THE EYES AND EARS OF THE CONSUMER WOULD NOT MISTAKE NESTLE’S PRODUCT FOR PUREGOLD’S PRODUCT.

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

SCD-2017-0031-Societe Des Products, Nestle, S.A. Vs. Puregold Price Club, Inc.

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