SOCIETE DES PRODUITS NESTLE, S.A.

AND NESTLE
PHILIPPINES INC. V. CA AND CFC CORPORATION
G.R. No. 112012, April 4, 2001
Facts: CFC Corporation filed with the Bureau of Patents,
Trademarks and Technology Transfer (BPTTT) an
application for the registration of the trademark FLAVOR
MASTER for instant coffee. Upon notice of the application,
Societe Des Produits Nestle, S.A., a Swiss company, filed a
Notice of Opposition claiming that the trademark of CFC
Corporations product is confusingly similar to its
trademarks for coffee and coffee extracts, to wit: MASTER
ROAST and MASTER BLEND. Likewise, a Notice of
Opposition was filed by Nestle Philippines, Inc., licensee of
Societe Des Produits Nestle S.A., against CFCs
application. Nestle claimed that the use, if any, by CFC of
the trademark FLAVOR MASTER and its registration would
likely (1) cause confusion in the trade; (2) deceive
purchasers and would falsely suggest to the purchasing
public a connection in the business of Nestle, as
the dominant word present in the three trademarks is
MASTER; (3) or that the goods of CFC might be mistaken
as having originated from the latter.
In answer to the two oppositions, CFC argued that its
trademark, FLAVOR MASTER, is not confusingly similar
with the formers trademarks, MASTER ROAST and MASTER
BLEND, alleging that, except for the word MASTER (which
cannot be exclusively appropriated by any person for
being a descriptive or generic name), the other words that
are used respectively with said word in the three
trademarks are very different from each other in meaning,
spelling, pronunciation, and sound. CFC further argued
that its trademark is clearly very different from any of
Nestles alleged trademarks especially when the marks are
viewed in their entirety, by considering their pictorial
representations, color schemes and the letters of their
respective labels.
In its Decision, the BPTTT denied CFCs application for
registration. The Court of Appeals reversed the Decision
and ruled that the overall appearance of the contending
marks, the physical discrepancies between CFCs and
Nestle respective logos are so ostensible that the casual
purchaser cannot likely mistake one for the other.
Issue: Whether or not CFCs trade dress bear a striking
resemblance with Nestle trademarks as to create in the
purchasing publics mind the mistaken impression that
both coffee products come from one and the same
source? Whether the trademark FLAVOR MASTER is a
colorable imitation of the trademarks MASTER ROAST and
MASTER BLEND?
Ruling: Colorable imitation denotes such a close or
ingenious imitation as to be calculated to deceive ordinary
persons, or such a resemblance to the original as to
deceive an ordinary purchaser giving such attention as a
purchaser usually gives, as to cause him to purchase the
one supposing it to be the other. In determining if
colorable imitation exists, jurisprudence has developed
two kinds of tests - the Dominancy Test and the Holistic
Test. The test of dominancy focuses on the similarity of the
prevalent features of the competing trademarks which
might cause confusion or deception and thus constitute
infringement. On the other side of the spectrum, the
holistic test mandates that the entirety of the marks in
question must be considered in determining confusing
similarity.
In the case at bar, the Court of Appeals held that the
determination of whether two trademarks are indeed
confusingly similar must be taken from the viewpoint of

the
ordinary
purchasers
who
are,
in
general,
undiscerningly rash in buying the more common and less
expensive household products like coffee, and are
therefore less inclined to closely examine specific details
of similarities and dissimilarities between competing
products. From this perspective, the test of similarity is to
consider the two marks in their entirety, as they appear in
the respective labels, in relation to the goods to which
they are attached.
The basis for the Court of Appeals application of the
totality or holistic test is the ordinary purchaser buying the
product under normally prevalent conditions in trade and
the attention such products normally elicit from said
ordinary purchaser. An ordinary purchaser or buyer does
not usually make such scrutiny nor does he usually have
the time to do so.
This Court cannot agree with the above reasoning. If
the ordinary purchaser is undiscerningly rash in buying
such common and inexpensive household products as
instant coffee, and would therefore be less inclined to
closely examine specific details of similarities and
dissimilarities between the two competing products, then
it would be less likely for the ordinary purchaser to notice
that CFCs trademark FLAVOR MASTER carries the colors
orange and mocha while that of Nestles uses red and
brown. The application of the totality or holistic test is
improper since the ordinary purchaser would not be
inclined to notice the specific features, similarities or
dissimilarities, considering that the product is an
inexpensive and common household item.
Rather, this Court believes that the dominancy test is
more suitable to this case in light of its peculiar factual
milieu. The totality or holistic test is contrary to the
elementary postulate of the law on trademarks and unfair
competition that confusing similarity is to be determined
on the basis of visual, aural, connotative comparisons and
overall impressions engendered by the marks in
controversy as they are encountered in the realities of the
marketplace. The totality or holistic test only relies on
visual comparison between two trademarks whereas the
dominancy test relies not only on the visual but also on
the aural and connotative comparisons and overall
impressions between the two trademarks.
From the evidence at hand, it is sufficiently
established that the word MASTER is the dominant feature
of Nestle mark. The word MASTER is printed across the
middle portion of the label in bold letters almost twice the
size of the printed word ROAST. Further, the word MASTER
has always been given emphasis in the TV and radio
commercials and other advertisements made in promoting
the product. In due time, because of these advertising
schemes the mind of the buying public had come to learn
to associate the word MASTER with the Nestle goods.
When one looks at the label bearing the trademark
FLAVOR MASTER, ones attention is easily attracted to the
word MASTER, rather than to the dissimilarities that
exist. Therefore, the possibility of confusion as to the
goods which bear the competing marks or as to the origins
thereof is not farfetched. The word MASTER is neither a
generic nor a descriptive term. As such, said term can not
be invalidated as a trademark and, therefore, may be
legally protected. The term MASTER is a suggestive term
brought
about
by
the
advertising
scheme
of
Nestle. Suggestive terms are those which, in the
phraseology of one court, require imagination, thought
and perception to reach a conclusion as to the nature of
the goods. Such terms, which subtly connote something

about the product, are eligible for protection in the

absence of secondary meaning.
The term MASTER, therefore, has acquired a certain
connotation to mean the coffee products MASTER ROAST
and MASTER BLEND produced by Nestle. As such, the use
by CFC of the term MASTER in the trademark for its coffee
product FLAVOR MASTER is likely to cause confusion or
mistake or even to deceive the ordinary purchasers.

ASIA BREWERY, INC. VS. COURT OF APPEALS

G.R. No. 103543, July 5, 1993
FACTS:
On September 1988, San Miguel Corporation
(SMC) sued Asia Brewery Inc. for allegedly infringing upon
their trademark on their beer product popularly known as
San Miguel Pale Pilsen; that Asia Brewerys Beer na
Beer product, by infringing upon SMCs trademark has
committed unfair competition as Beer na Beer creates
confusion between the two products. The RTC ruled in
favor of Asia Brewery but the Court of Appeals reversed
the RTC.
ISSUE:
Whether or not Asia Brewery Inc. committed
infringement of trademark and unfair competition against
San Miguel Corporation.?
RULING:
No infringement. Infringement is determined by
the "test of dominancy" rather than by differences or
variations in the details of one trademark and of another.
If the competing trademark 1) contains the main or
essential or dominant features of another, and 2)
confusion and deception is likely to result, infringement
takes place.
In the instant case, the dominant feature of SMC
is the words SAN MIGUEL PALE PILSEN with elaborate
serifs at the beginning and end of the letters "S" and "M."
While the dominant feature of ABI's trademark is the
name: BEER PALE PILSEN with the word "Beer" written in
large amber letters. Besides the dissimilarity in their
dominant feature, the following other dissimilarities in the
appearance of the competing products abound:

"Bottled by the San Miguel Brewery, Philippines,"

"Especial

Incorpora
With SMC logo

No logo

Price: P7.00 per bottle

Price: P4.

Based on the dissimilarity in their dominant

features as well as in sound, spelling & appearance, Beer
na Beer cannot be said to be similarly confusing with San
Miguel Pale Pilsen.
The fact that the words pale pilsen are part of
ABI's trademark does not constitute an infringement of
SMC's trademark: SAN MIGUEL PALE PILSEN, for "pale
pilsen" are generic words descriptive of the color ("pale"),
of a type of beer ("pilsen"), which originated in the City of
Pilsen, Czechoslovakia.
No unfair competition. Sec 29, Republic Act No.
166 as amended describes unfair competition as the
employment of deception or any other means contrary to
good faith by which a person shall pass off the goods
manufactured by him or in which he deals, or his business,
or services, for those of another who has already
established goodwill for his similar goods, business or
services, or any acts calculated to produce the same
result. Therefore, the universal test question is whether
the public is likely to be deceived.
In this case, the use of similar but unidentical
bottle size, shape & color is not unlawful as aptly
explained. The 320 ml capacity is the standard prescribed
by the Dept of Trade. The amber color is a functional
feature for it prevents transmission of light and provides
the maximum protection to beer. Being of functional or
common use, SMCs being the first to use does not give
SMC exclusive right to such use. The bottle shape is
usually standardized just as a ketchup or vinegar bottle
with its familiar elongated neck, thereby dismissing the
attendance of bad faith or the intention to deceive the
public by ABI.
Moreover, buyers generally order their beer by
brand in the supermarket, sari-sari stores, restaurants;
thus dismissing the idea that Beer na Beer can be passed
off as San Miguel Beer. There can be no confusion or the
likelihood of deception among the consumers.
Both products are manufactured using
amber colored steinie bottles of 320 ml. Both were
labeled in a rectangular fashion using white color
paint. But other than these similarities, there are
salient differences between the two. As found by
the Supreme Court, among others they are the
following:

words "San Miguel Brewery Philippines" encircling the

1. The dominant feature of SMCs trademark are

the words San Miguel Pale Pilsen while that of
Asia Brewerys trademark is the word Beer.
Nowhere in SMCs product can be seen the word
Beer nor in Asia Brewerys product can be seen
Fat, bulging neck.
the words San Miguel Pale Pilsen. Surely,
Stamped someone
with the buying
name "BEER"
in Beer
the center,
Beer na
cannot mistake it
as San Miguel Pale Pilsen beer.
surrounded
by

same

Incorporated Philippines.

San Miguel
Bottle has a slender tapered neck
Bottle cap is stamped with a coat of arms and the

2. The bottle designs are different. SMCs bottles

have slender tapered neck while that of Beer na
Beer are fat. Though both beer products use
steinie bottles, SMC cannot claim that Asia Brewery
copied the idea from SMC. SMC did not invent but
merely borrowed the steinie bottle from abroad and
SMC does not have any patent or trademark to
protect the steinie bottle shape and design.
3. In SMC bottles, the words pale pilsen are
written diagonally while in Beer na Beer, the
words pale pilsen are written horizontally.
Further, the words pale pilsen cannot be said to
be copied from SMC for pale pilsen are generic
words
which
originated
from
Pilsen,
Czechoslovakia. Pilsen is a
geographically
descriptive word and is non-registrable.
4. SMC bottles have no slogans written on them
while Asia Brewerys bottles have a copyrighted
slogan written on them that is Beer na Beer.
5. In SMC bottles, it is expressly labeled as
manufactured by SMC. In Asia Brewery beer
products, it is likewise expressly labeled as
manufactured by Asia Brewery. Surely, there is no
intention on the part of Asia Brewery to confuse the
public and make it appear that Beer na Beer is a
product of SMC, a long-established and more
popular brand.

Justice Cruz Dissenting:

A number of courts have held that to
determine whether a trademark has been infringed,
we must consider the mark as a whole and not as
dissected. If the buyer is deceived, it is attributable
to the marks as a totality, not usually to any part of
it. The court therefore should be guided by its first
impression, for a buyer acts quickly and is governed
by a casual glance, the value of which may be
dissipated as soon as the court assumes to analyze
carefully the respective features of the mark. (Del
Monte vs CA & Sunshine Sauce)

COFFEE PARTNERS V. SAN FRANCISCO

Facts:
Identities of the parties:
Petitioner: Coffee Partners, Inc. is a local corporation
engaged in the business of establishing and maintaining
coffee shops in the country. It registered with the
Securities and Exchange Commission (SEC) in January
2001 and has a franchise agreement withCoffee Partners
Ltd. (CPL), a business entity organized and existing under
the laws of British Virgin Islands, for a non-exclusive right
to operate coffee shops in the Philippines using
trademarks designed by CPL such as SAN FRANCISCO
COFFEE.
Respondent: a local corporation engaged in the wholesale
and retail sale of coffee. It registered with the SEC in May
1995. It registered the business name SAN FRANCISCO
COFFEE & ROASTERY, INC. with the Department of Trade

and Industry (DTI) in June 1995. Respondent had since

built a customer base that included Figaro Company,
Tagaytay Highlands, Fat Willys, and other coffee
companies.
1. In 1998, respondent formed a joint venture company
with Boyd Coffee USAunder the company name Boyd
Coffee Company Philippines, Inc. (BCCPI).
2. In June 2001, respondent discovered that petitioner was
about to open a coffee
shop under the name SAN FRANCISCO COFFEE in Libis,
Quezon City.
3. Respondent sent a letter to petitioner demanding that
the latter stop using the
name SAN FRANCISCO COFFEE.
4. Respondent also filed a complaint with the Bureau of
Legal Affairs-Intellectual PropertyOffice (BLA-IPO) for
infringement and/or unfair competition with claims for
damages
5. Ruling of the Bureau of Legal Affairs-Intellectual
Property Officea.
Petitioners
trademark
infringed
on
respondents trade name.
b. The right to the exclusive use of a trade name
with freedom from infringement bysimilarity is
determined from priority of adoption
c. Since respondent registered its business name
with the DTI in 1995 andpetitioner registered its
trademark with the IPO in 2001 in the Philippines
and in1997 in other countries, then respondent
must be protected from infringement of its trade
name.
6. BLA-IPO also held that respondent did not abandon the
use of its trade name assubstantial evidence indicated
respondent continuously used its trade name inconnection
with the purpose for which it was organized.
7. Petitioners use of the trademark SAN FRANCISCO
COFFEE will likely cause confusion because of the exact
similarity
in
sound, spelling,
pronunciation,
and
commercial impression of the words which is the dominant
portion of respondents trade name and petitioners
trademark.
-No significant difference resulted even with a diamondshaped figure with a cupin the center in petitioner's
trademark because greater weight is given to words.
8. On the issue of unfair competition, the BLA-IPO
absolved petitioner from liability; therewas no evidence of
intent to defraud on the part of petitioner.
9. The Office of the Director General Intellectual Property
Office (ODG-IPO) reversedthe BLA-IPO.
- It ruled that petitioner's use of the trademark "SAN
FRANCISCO COFFEE" did not infringe on respondent's
trade name.
- Also, it found that respondent had stopped using its
trade name after it entered into a joint venture with Boyd
Coffee USA in 1998 while petitioner continuously used the
trademark since June 2001 when it opened its first coffee
shop in Libis, Quezon City.
- It ruled that between a subsequent user of a trade name
in good faith and a prior user who had stopped using such
trade name, it would be inequitable to rule in favor of the
latter.
10. The Court of Appeals reversed the ODG-IPO decision
and reinstated the decision of theBLA-IPO finding
infringement.
- It denied petitioner's motion for reconsideration
and respondent's motion for partial reconsideration.
Issue:

Whether petitioners use of the trademark SAN

FRANCISCO
COFFEE
constitutesinfringement
of
respondents trade name SAN FRANCISCO COFFEE
&ROASTERY, INC., even if the trade name is not
registered with the Intellectual Property Office (IPO)
Ruling: Yes
In Prosource International, Inc. v.Horphag Research
Management SA, this Court laiddown what constitutes
infringement of an unregistered trade name, thus:
1. The trademark being infringed is registered in the
Intellectual Property Office;however,
in infringement of trade name, the same need not be
registered;
2. The trademark or trade name is reproduced,
counterfeited, copied, or colorably imitated by the
infringer;
3. The infringing mark or trade name is used in connection
with the sale, offering for sale, or advertising of any goods,
business or services; or the infringing mark or trade name
is applied to labels, signs, prints, packages, wrappers,
receptacles,or advertisements intended to be used upon
or in connection with such goods, business, or services;
4. The use or application of the infringing mark or trade
name is likely to causeconfusion or mistake or to deceive
purchasers or others as to the goods or services
themselves or as to the source or origin of such goods or
services or theidentity of such business; and
5. It is without the consent of the trademark or trade
name owner or the assigneethereof
Clearly, a trade name need not be registered with the IPO
before an infringement suit may be filed by its owner
against the owner of an infringing trademark. All that is
required is that the trade name is previously used in trade
or commerce in the Philippines.
HOWEVER, RA 8293, WHICH TOOK EFFECT ON 1 JANUARY
1998,

HAS

REQUIREMENT.

DISPENSED
SECTION

WITH

THE

165.2

OF

REGISTRATION
RA

8293

CATEGORICALLY STATES THAT TRADE NAMES SHALL BE

PROTECTED, EVEN PRIOR TO OR WITHOUT REGISTRATION
WITH THE IPO, AGAINST ANY UNLAWFUL ACT INCLUDING
ANY SUBSEQUENT USE OF THE TRADE NAME BY A THIRD
PARTY, WHETHER AS A TRADE NAME OR A TRADEMARK
LIKELY TO MISLEAD THE PUBLIC. THUS:
SEC.
165.2
(A) NOTWITHSTANDING
ANY
LAWS
OR
REGULATIONS
PROVIDING FOR ANY OBLIGATION TO
REGISTER TRADE NAMES, SUCH
NAMES SHALL BE PROTECTED, EVEN
PRIOR
TO
OR
WITHOUT
REGISTRATION,
AGAINST
ANY
UNLAWFUL ACT COMMITTED BY THIRD
PARTIES.
(B) IN PARTICULAR, ANY SUBSEQUENT USE OF A TRADE
NAME BY A THIRD PARTY, WHETHER AS A TRADE NAME OR
A MARK OR COLLECTIVE MARK, OR ANY SUCH USE OF A
SIMILAR TRADE NAME OR MARK, LIKELY TO MISLEAD THE
PUBLIC, SHALL BE DEEMED UNLAWFUL. (EMPHASIS
SUPPLIED)

APPLYING EITHER THE DOMINANCY TEST OR THE HOLISTIC

TEST, PETITIONERS SAN FRANCISCO COFFEE TRADEMARK
IS A CLEAR INFRINGEMENT OF RESPONDENTS SAN
FRANCISCO COFFEE & ROASTERY, INC. TRADE NAME. THE
DESCRIPTIVE WORDS SAN FRANCISCO COFFEE ARE
PRECISELY THE DOMINANT FEATURES OF RESPONDENTS
TRADE NAME. PETITIONER AND RESPONDENT ARE
ENGAGED IN THE SAME BUSINESS OF SELLING COFFEE,
WHETHER WHOLESALE OR RETAIL. THE LIKELIHOOD OF
CONFUSION IS HIGHER IN CASES WHERE THE BUSINESS
OF ONE CORPORATION IS THE SAME OR SUBSTANTIALLY
THE SAME AS THAT OF ANOTHER CORPORATION. IN THIS
CASE, THE CONSUMING PUBLIC WILL LIKELY BE CONFUSED
AS TO THE SOURCE OF THE COFFEE BEING SOLD AT
PETITIONERS COFFEE SHOPS. PETITIONERS ARGUMENT
THAT SAN FRANCISCO IS JUST A PROPER NAME REFERRING
TO THE FAMOUS CITY IN CALIFORNIA AND THAT COFFEE IS
SIMPLY A GENERIC TERM, IS UNTENABLE. RESPONDENT
HAS ACQUIRED AN EXCLUSIVE RIGHT TO THE USE OF THE
TRADE NAME SAN FRANCISCO COFFEE & ROASTERY, INC.
SINCE THE REGISTRATION OF THE BUSINESS NAME WITH
THE DTI IN 1995. THUS, RESPONDENTS USE OF ITS TRADE
NAME FROM THEN ON MUST BE FREE FROM ANY
INFRINGEMENT BY SIMILARITY. OF COURSE, THIS DOES
NOT MEAN THAT RESPONDENT HAS EXCLUSIVE USE OF
THE GEOGRAPHIC WORD SAN FRANCISCO OR THE
GENERIC WORD COFFEE. GEOGRAPHIC OR GENERIC
WORDS ARE NOT, PER SE, SUBJECT TO EXCLUSIVE
APPROPRIATION. IT IS ONLY THE COMBINATION OF THE
WORDS
SAN
FRANCISCO
COFFEE,
WHICH
IS
RESPONDENTS TRADE NAME IN ITS COFFEE BUSINESS,
THAT IS PROTECTED AGAINST INFRINGEMENT ON
MATTERS RELATED TO THE COFFEE BUSINESS TO AVOID
CONFUSING OR DECEIVING THE PUBLIC.
MCDONALDS CORPORATION VS MACJOY FASTFOOD
CORPORATION
Facts: MacJoy is a domestic corporation engaged in the
sale of fast foods in Cebu. In March 1991, MacJoy filed an
application for registration of the trademark MACJOY &
DEVICE for fried chicken, chicken barbeque, burgers,
fries, spaghetti, palabok, tacos, sandwiches, halo-halo and
steaks.
McDonalds Corporation is a corporation duly
organized and existing under the laws of Delaware, USA.
They filed a verified notice of opposition against MacJoys
application claiming that the trademark MACJOY &
DEVICE resembles it corporate logo (Golden Arches or
M Design, and its marks McDonalds, McChicken,
MacFries, BigMac, McDo, which are McDONALDs
marks). Such that, when used on identical of related
goods, the trademark applied for would confuse or deceive
purchasers into believing that the goods originate from
the same source. They also alleged that MacJoys adoption
in bad faith of the MACJOY & DEVICE would falsely tend
to suggest a connectionor affiliation with McDonalds
Corporation restaurant services and food products, thus,
constituting a fraud upon the general public.
MacJoy contended that it had been using the said
trademark for the past manyyears in good faith and that it
has spent considerable sums of money for said marks
extensive promotion in tri-media, especially in Cebu where
it has been doing business long before McDonalds
Corporation opened its outlet thereat sometime in 1992.
They also contended that the use of the said trademark
would not confuse affiliation with McDonalds services and
food products because of the differences in the design and
detail of the 2 marks.

The IPO (Intellectual Property Office) ruled that

there is confusing similarity between the marks of
McDonalds and MacJoy, hence, it rejected the application
of MacJoy. The IPO used the dominancy test and took note
of the appearance of the predominant features M, Mc,
and Mac in justifying its rejection of the application of
MacJoy
However, the CA reversed the IPO Decision.
Hence, this petition by McDonalds.
Issue: WON the trademark MACJOY & DEVICE is
confusingly similar to McDonalds marks
Held: YES. In determining similarity between 2
trademarks, jurisprudence has developed 2 tests: the
dominancy test and the holistic test.
The dominancy test focuses on the similarity of
prevalent features of the 2 trademarks that might cause
the confusion or deception. On the other hand, the holistic
test requires the court to consider the entirety of the
marks as applied to the products, including the labels and
packaging, in determining confusing similarity. Under the
holistic test, a comparison of the words is not the only
determinant factor.
The dominancy test is better applicable in the
case at bar. The Court ruled that McDonalds marks and
MacJoys are confusingly similar such that an ordinary
purchaser can conclude an association or relation between
the marks. Both the trademarks use the corporate M
design logo as dominant features. For sure, it is the prefix,
Mc which catches the attention of the public. Verily, the
work MACJOY attracts attention the same way as other
McDonalds marks which all use the prefixes Mc or
Mac.
Both trademarks are also used in the sale of fast
food products. Furthermore, the trademarks both cover
goods under Classes 29 and 30 of the International
Classification of Goods, namely, fried chicken, chicken
barbeque, burgers, fries, spaghetti, etc.
On MacJoys contention that McDonalds cannot
claim ownership of the word Mac because it is a
personal name which may not be monopolized as a
trademark as against other of the same name or surname,
the Court ruled that as a rule, once a trademark has been
registered, the validity of the mark is prima facie
presumed. In this case, MacJoy failed to overcome such
presumption. MacJoys explanation that the word MacJoy
came from their presidents nieces name Scarlett Yu
Carcell is untenable. First, there is no connection between
the name and MacJoy. Second, even assuming that it was
really a term of endearment, the same is not sufficient as
to how and why out of the many choices of words, it used
the word MacJoy. Therefore, the only logical conclusion
is MacJoy wants to ride high on the established reputation
and goodwill of McDonalds marks.
McDonalds registered its marks on October 4,
1971. On the other hand, MacJoy only started using the
marks on December 7, 1987 and filed application thereof
on March 14, 1991. It is clear therefore that McDonalds
has the rightful claim of ownership over said marks.
Wherefore, the Decision of CA is reversed and set
aside. The IPO Decision is reinstated.
Nota Bene: The other contention of MacJoy that it was
the first user of the mark in the Philippines is also
unmeritorious. MacJoy first used the mark in 1987, while
McDonalds first outlet was opened only in 1992. This is
immaterial since under the law, the requirement of actual
use in commerce in the Philippines before one may
register a trademark pertains to the territorial jurisdiction
of the Philippines and is not only confined to a certain
region, province, city or barangay

JAIME BIANA V GEORGE GIMENEZ

GR No 132768
September 9, 2005
FACTS
In a labor case filed entitled Santos Mendones vs.
Gimenez Park Subdivision and herein respondent George
Gimenez, the defendants were ordered to pay a total of
P5,248.50 to Mendones.
Due to defendants failure to pay the judgment
obligation, sheriff Madera levied and attached 4 parcels of
urban land situated in Naga City with an area of more than
74 hectares. On December 6, 1978, a public auction was
conducted where Mendones won as sole bidder with his
bid of P8,908.50 representing the judgment obligation plus
expenses of execution.
Gimenez asserted that he was not informed of the
execution sale and that it was known only when he was
asked to pay for the full publication fee and immediaely
paid them.
He was then informed that the redemption price
including interest and sheriff fee is P6,615.89. He then
issued checks worth P5,615.89 in the name of sheriff
Garchitorena, since sheriff Madera was not around to
facilitate the redemption.
On December 3, 1979, sheriff Madera informed the
counsel of Gimenez that the 1-year redemption period will
soon expire and that he still have a subsisting balance of
P4,367.81. Gimenez asked for the details of said account
and disagreed with its itemization since he had already
paid for the publication fee. Seriff Madera executed a
Definite Deed of Sale in favor of Mendones.
Gimenez then requested sheriff Garchitorena to
execute a deed of redemption in his favor. His request
having been refused, Gimenez filed an acion for
mandamus with damages to compel the sheriffs to
execute the deed of redemption and nullification of the
Deed of Sale.
During pendency of the case, Mendones assigned his
right over the subject property to petitioner Jaime Biana in
consideration of P1,000,000.00.
RTC ruled in favor of Gimenez. CA affirmed.
ISSUE
W/N the provincial sheriff may be legally compelled to
execute a deed of redemption in favor of respondent
Gimenez.
RULING
Yes. The right of redemption involves the exercise of
a right, what applies is the settled rule that a mere tender

of a check is sufficient to compel redemption but it is not

in itself a payment that relieves he redemptioner from his
liability to ay the redemption price. This is strenghtened
by the fact that sheriff Madera himself deducted the 4
checks issued by Gimenez from the latters liability when
he submitted the itemization requested by the latters
counsel.

the Twin Tower(s) for the hefty sum of P2,048,900.00

considering that the Twin Towers was then yet to be built.
In contravention of [petitioners] warranties and of good
engineering practices, the condominium unit purchased by
[respondent] suffered from the defects and/or deficiencies.
Respondents Answer prayed that judgment be rendered
ordering [petitioner] to correct such defects/deficiencies in
the condominium unit, and that the due reliefs be granted.
ISSUES: WON petitioner suffered damages?
RULING: The Petition is partly meritorious.

BPI V ALS MGMT

G.R. No. 151821. April 14, 2004
FACTS
On July 29, 1985, [petitioner] BPI Investment
Corporation filed a complaint for a Sum of Money against
ALS Management and Development Corporation, alleging
inter alia that on July 22, 1983, [petitioner] and
[respondent] executed at Makati, Metro Manila a Deed of
Sale for one (1) unfurnished condominium unit of the Twin
Towers Condominium located at Ayala Avenue, corner
Apartment Ridge Street, Makati, Metro Manila designated
as Unit E-4A comprising of 271 squares [sic] meters more
or less, together with parking stalls identified as G022 and
G-63. The Condominium Certificate of Title No. 4800 of the
Registry of Deeds for Makati, Metro Manila was issued
after the execution of the said Deed of Sale. [Petitioner]
advanced the amount of P26,300.45 for the expenses in
causing the issuance and registration of the Condominium
Certificate of Title. Under the penultimate paragraph of
the Deed of Sale, it is stipulated that the VENDEE
[respondent] shall pay all the expenses for the preparation
and registration of this Deed of Sale and such other
documents as may be necessary for the issuance of the
corresponding Condominium Certificate of Title. After the
[petitioner] complied with its obligations under the said
Deed of Sale, [respondent], notwithstanding demands
made by [petitioner], failed and refused to pay [petitioner]
its legitimate advances for the expenses mentioned above
without any valid, legal or justifiable reason.
In its Answer with Compulsory Counterclaim,
[respondent] averred among others that it has just and
valid reasons for refusing to pay [petitioners] legal claims.
In clear and direct contravention of Section 25 of
Presidential Decree No. 957 which provides that No fee
except those required for the registration of the deed of
sale in the Registry of Deeds shall be collected for the
issuance of such title, the [petitioner] has jacked-up or
increased the amount of its alleged advances for the
issuance and registration of the Condominium Certificate
of Title in the name of the [respondent], by including
therein charges which should not be collected from buyers
of condominium units. [Petitioner] made and disseminated
brochures and other sales propaganda in and before May
1980, which made warranties as to the facilities,
improvements, infrastructures or other forms of
development of the condominium units (known as The
Twin Towers) it was offering for sale to the public, which
included the following:
[Respondent] further averred that [petitioner] represented
to the [respondent] that the condominium unit will be
delivered completed and ready for occupancy not later
than December 31, 1981. [Respondent] relied solely upon
the descriptions and warranties contained in the
aforementioned brochures and other sales propaganda
materials when [respondent] agreed to buy Unit E-4A of

Warranties and Representations

in the Brochure
The brochure that was disseminated indicated features
that would be provided each condominium unit; and that,
under Section 19 of PD No. 957, would form part of the
sales warranties of petitioner. Respondent relied on the
brochure in its decision to purchase a unit. Since the
former failed to deliver certain items stated therein, then
there was a clear violation of its warranties and
representations.
The brochure says that [t]he particulars stated x x x as
well as the details and visuals shown x x x are intended to
give a general idea of the project to be undertaken, and as
such, are not to be relied [upon] as statements or
representations of fact. This general disclaimer should
apply only to the general concept of the project that
petitioner aptly characterizes thus:
x x x [D]estined to reflect condominium living at its very
best and its design x x x will make the project the only one
of its kind in the Philippines.
This disclaimer, however, should not apply to the features
and the amenities that the brochure promised to provide
each condominium unit. Petitioner was thus in breach
when it failed to deliver a closed-circuit TV monitor
through which residents from their apartments can see
their guests x x x.
Damages for Delay in Delivery
It is undisputed that petitioner sent respondent a Contract
to Sell declaring that the construction would be finished on
or before December 31, 1981. The former delivered the
condominium unit only in June 1982; thus, the latter
claims that there was a delay in the delivery.
Because of this
pay damages
income for the
lease contract.
such award.

delay, the trial court ordered petitioner to

of P136,608.75 representing unearned
period that respondent had to suspend a
We find a dearth of evidence to support

To recover actual damages, the amount of loss must not

only be capable of proof, but also be proven with a
reasonable degree of certainty. The lone evidence for this
award was the self-serving testimony of respondents
witness that a lease contract had indeed been intended to
commence in January 1982, instead of the actual
implementation on June 18, 1982. Without any other
evidence, we fail to see how the amount of loss was
proven with a reasonable degree of certainty.
Condominium Defects

The rule is that a partys case must be established through

a preponderance of evidence. By such term of evidence is
meant simply evidence that is of greater weight, or is
more convincing than that which is offered in opposition to
it. Respondent was able to establish through its witness
testimony that the condominium unit suffered from
defects. This testimony was confirmed by an inspection
report noted and signed by petitioners representative, as
well as by a commissioners report prepared after an ocular
inspection by the clerk of court acting as a commissioner.
Furthermore, this conclusion is supported by the
circumstances that occurred during the lease period, as
evidenced by the complaint and the update letters of
respondents lessee.

balcony; (4) pay P40,000.00 as reimbursement for

completion work done by respondent; (5) pay P27,321.75
per month for a period of twenty-one months for the
alleged unearned income during the period when the
condominium unit remained vacant. Petitioner, however, is
ORDERED to pay P51,000 as temperate damages for the
termination of the lease contract because of the defects in
the condominium unit. All other awards are AFFIRMED.

Petitioners contention that the claim arising from the

alleged defects has already prescribed must fail for being
raised for the first time only on appeal. Well-settled is the
rule that issues not raised below cannot be resolved on
review in higher courts.

Makati Commercial Estate Association, Inc.

(formerly Ayala Commercial Estate Association), the
respondent, is an association of all real estate owners and
long-term lessees of parcels of land located in the Makati
Commercial Area. Pursuant to its Articles of Incorporation,
the members are assessed association dues annually,
subject to penalty and interest in case of default.
Petitioner, South Pachem Development, Inc. purchased
from Ayala Corp two adjoining lots.
The deed of
restrictions which was duly annotated in the titles of the
property and annexed to the two deeds provides that:
The owner of this lot or his successor-in-interest is
required to be and is automatically a member of the
Makati Commercial Estate Association, Inc. or any other
Association which may be formed or to which the area
may be affiliated got the purpose, and must abide by the
rules and regulations laid down by the association in the
interest of security, maintenance, beautification and the
general welfare of the area. The association will also
provide for and collect assessments which will constitute a
lien on the property xxxx

We agree, however, that the lower courts erred in finding

that there was a defect in a portion of the balcony, which
respondent alleges to be a walkway x x x [that] is not
sufficient for passage. Petitioner was able to prove,
however, that the specifications thereof conformed to the
building plan.
Unearned Lease Income
Respondent entered into a lease contract with Advanced
Micro Device on May 18, 1982, for the period June 18,
1982 to June 17, 1983, with option to renew. The lease -which was for an agreed monthly rental of P17,000 -- was
renewed for a period ending May 1, 1985, when Advanced
Micro Device vacated the unit. On the basis of these facts,
the trial court ordered petitioner to pay damages by way
of unrealized income for twenty-one months or from May
1, 1985, until January 1987 -- when respondent decided to
move into the condominium unit, which was unoccupied
by then.
Despite the defects of the condominium unit, a lessee
stayed there for almost three years. The damages claimed
by respondent is based on the rent that it might have
earned, had Advanced Micro Device chosen to stay and
renew the lease. Such claim is highly speculative,
considering that respondent failed to adduce evidence
that the unit had been offered for lease to others, but that
there were no takers because of the defects therein.
Speculative damages are too remote to be included in an
accurate estimate thereof. Absent any credible proof of
the amount of actual damage sustained, the Court cannot
rely on speculations as to its existence and amount.
We recognize, however, that respondent suffered damages
when its lessee vacated the condominium unit on May 1,
1985, because of the defects therein. Respondents are
thus entitled to temperate damages. Under the
circumstances, the amount equivalent to three monthly
rentals of P17,000 -- or a total of P51,000 -- would be
reasonable.
WHEREFORE, this Petition is PARTLY GRANTED, and the
assailed Decision and Resolution of the Court of Appeals
MODIFIED, as follows:
Hereby DELETED is the requirement on the part of
petitioner to (1) deliver storage facilities on the ground
floor; (2) pay P136,608.75 for unearned income for the
five-month period that the lease contract was allegedly
suspended; (3) correct the alleged passageway in the

SOUTH PACHEM V. CA
G.R. No. 126260, December 16, 2004
Facts:

The petitioner stopped paying its association dues

including the interest and penalty to private respondent.
It questioned the legality of the deed of restrictions for
being contrary to morals, public policy, good customs, and
the Constitution, as it constituted a perpetual burden on
the property and the purchaser would be deprived of the
use of the property without due process of law.
Issue: W/N the deed restrictions is a valid limitation on
petitioners right of ownership.
Held: Yes.
The provision in the deed restrictions which
required a purchaser of a parcel of land located in the
Makati area to pay association fees is a valid stipulation. A
case in point is Bel Air Village Association, Inc. v.
Dionisiowhere the village association filed a complaint for
collection of the association dues and also claimed for
penalty and other charges. The Court affirmed the rule
that an annotation to the effect that the lot owner
becomes an automatic member of the village association
and must abide by such rules and regulations laid down by
said association was a valid restraint on ones ownership
over the property as the same was for the interest of the
sanitation, security and the general welfare of the
community.

FLORENCIO EUGENIO, doing business under the

name E& S Delta Village, petitioner,vs. EXECUTIVE
SECRETARY FRANKLIN M. DRILON, HOUSING AND
LAND USE. REGULATORY BOARD (HLURB) AND
PROSPERO PALMIANO, respondents.
Facts:

Did the failure to develop a subdivision constitute

legal justification for the non-payment of
amortizations by a buyer on installment under
land purchase agreements entered into prior
to the enactment of P.D. 957, The Subdivision and
Condominium Buyers Protective Decree?

On May 10, 1972, private respondent purchased

on installment basis from petitioner and his coowner/ developer Fermin Salazar, two lots in the E
& S Delta Village in Quezon City.

He,together with the Delta Village Homeowners

Association, Inc filed complaints for nondevelopment of the village..filed with the Office of
Appeals, Adjudication and Legal Affairs (OAALA) of
the Human Settlements Regulatory Commission
(HSRC)) against petitioner and spouses Rodolfo
and Adelina Relevo

Private respondent suspended his payments

because of petitioners failure to develop the
village and prayed for the annulment of the sale
to the Relevo spouses and for reconveyance of
the lot to him.

OAALA rendered a decision upholding the right of

petitioner to cancel the contract with private
respondent and dismissed private respondents
complaint.

Commission Proper of the HSRC reversed the

OAALA and, applying P.D. 957, ordered petitioner
to complete the subdivision development and to
reinstate private respondents purchase contract
over one lot,.

The respondent Executive Secretary, on appeal,

affirmed the decision of the HSRC

Issue:
Whether or not the Executive Secretary abused its
discretion in giving a retroactive effect to PD 957. NO

Ruling:
No. Respondent Executive Secretary did not act with grave
abuse of discretion and P.D. 957 is to given retroactive
effect so as to cover even those contracts executed prior

to its enactment in 1976. P.D. 957 did not expressly

provided for retroactivity in its entirety, but suchcan be
plainly inferred from the unmistakable intent of the law.
The intent of the statute is thelaw.
P.D. 957 is to be given retroactive effect so as to
cover even those contracts executed prior to its
enactment in 1976.
P.D. 957 was enacted with no other end in view than
to provide a protective mantle over helpless citizens who
may fall prey to the manipulations and machinations of
unscrupulous subdivision and condominium sellers, and
such intent is nowhere expressed more clearly than in its
preamble, pertinent portions of which read as follows:
Adding force to the arguments for the retroactivity of
P.D. 957 as
a
whole
are
certain
of
its
provisions, viz., Sections 20, 21 and 23 thereof, which by
their very terms have retroactive effect and will impact
upon even those contracts and transactions entered into
prior to P.D. 957s enactment:
Sec.
20. Time
of
Completion. - Every
owner
or
developer shall construct and provide the facilities,
improvements, infrastructures and other forms of
development, including water supply and lighting facilities,
which are offered and indicated in the approved
subdivision or condominium plans, brochures, prospectus,
printed matters, letters or in any form of advertisement,
within one year from the date of the issuance of the
license for the subdivision or condominium project or such
other period of time as may be fixed by the Authority.
Sec. 21. Sales Prior to Decree. - In cases of subdivision
lots or condominium units sold or disposed of prior to the
effectivity of this Decree, it shall be incumbent upon the
owner or developer of the subdivision or condominium
project to complete compliance with his or its obligations
as provided in the preceding section within two years from
the date of this Decree unless otherwise extended by the
Authority or unless an adequate performance bond is filed
in accordance with Section 6 hereof.
Failure of the owner or developer to comply with the
obligations under this and the preceding provisions shall
constitute a violation punishable under Sections 38 and 39
of this Decree.
Sec. 23. Non-Forfeiture of Payments. - No installment
payment made by a buyer in a subdivision or
condominium project for the lot or unit he contracted to
buy shall be forfeited in favor of the owner or developer
when the buyer, after due notice to the owner or
developer, desists from further payment due to the failure
of the owner or developer to develop the subdivision or
condominium project according to the approved plans and
within the time limit for complying with the same. Such
buyer may, at his option, be reimbursed the total amount
paid including amortization interests but excluding
delinquency interests, with interest thereon at the legal
rate. (italics supplied)

In any event, as pointed out by respondent HLURB

and seconded by the Solicitor General, the defaults in
amortization payments incurred by private respondent
had been effectively condoned by the petitioner, by
reason of the latters tolerance of the defaults for a long
period of time.

PADCOM V ORTIGAS
FACTS:
Petitioner PADCOM owns and manages the Padilla
Office Condominium Building (PADCOM Building) in Pasig
City. The land on which the building stands was originally
acquired by Tierra Development Corporation (TDC) under
a Deed of Sale dated 4 September 1974. Subsequently,
the said lot, together with improvements thereon, was
conveyed by TDC in favor of PADCOM in a Deed of Transfer
dated 25 February 1975.
In 1982, respondent Ortigas was organized to
advance the interests and promote the general welfare of
the real estate owners and long-term lessees of lots in the
Ortigas Center. It sought the collection of membership
dues in the amount of (P2,724.40) per month from
PADCOM. The corporate books showed that PADCOM owed
the Association P639,961.47, representing membership
dues, interests and penalty charges from April 1983 to
June 1993. The letters exchanged between the parties
through the years showed repeated demands for
payment, requests for extensions of payment, and even a
settlement scheme proposed by PADCOM in September
1990.
In view of PADCOMs failure and refusal to pay its
arrears in monthly dues, including interests and penalties
thereon, the Association filed a complaint for collection of
sum of money before the RTC. In its answer, PADCOM
contended that it is a non-stock, non-profit association and
no automatic membership was apparently contemplated
in the Associations By-laws. And since it was not a
member of the Association, it was not liable for
membership dues, interests and penalties.
During the trial, the Association presented its
accountant as lone witness while PADCOM, on the other
hand, did not present its evidence. RTC dismissed the
complaint however CA reversed and set aside RTCs
decision in favour to the Association. The CA justified its
ruling by declaring that PADCOM automatically became a
member of the Association when the land was sold to
TDC. The intent to pass the obligation to prospective
transferees was evident from the annotation of the same
clause at the back of the Transfer Certificate of Title
covering the lot.
ISSUE:
WON PADCOM is compelled to join the association
pursuant
to
the
provision
on automatic
membership appearing as a condition in the Deed of Sale.
RULING:

Yes. Article 1311 of the Civil Code provides that

contracts take effect between the parties, their assigns
and heirs. Since PADCOM is the successor-in-interest of
TDC, it follows that the stipulation on automatic
membership with the Association is also binding on the
former.
The By-laws of the Association requires application
for membership and acceptance thereof by the Board of
Directors. Section 2 of the By-laws which reads:
Section 2. Regular Members. Upon acceptance by the
Board of Directors of Ortigas Center Association, Inc., all
real estate owners, or long-term lessees of lots within the
boundaries of the Association as defined in the Articles of
Incorporation become regular members, provided,
however that the long-term lessees of a lot or lots in said
area shall be considered as the regular members in lieu of
the owners of the same. Likewise, regular membership in
the Association automatically ceases upon the cessation
of a member to be an owner or long-term lessee of real
estate in the area.
A lessee shall be considered a long-term lessee if his
lease is in writing and for a period of two (2) years or
more. Membership of a long-term lessee in the Association
shall be co-terminus with his legal possession (or his
lease) of the lot/s in the area. Upon the lessees cessation
of membership in the Association, the owner shall
automatically succeed the lessee as member thereat.
Hence, as a lot owner, PADCOM is a regular member of the
Association. No application for membership is necessary.
As resident and lot owner in the Ortigas area, PADCOM
was definitely benefited by the Associations acts and
activities to promote the interests and welfare of those
who acquire property therein or benefit from the acts or
activities of the Association.
Having ruled that PADCOM is a member of the
Association, it is obligated to pay its dues incidental
thereto. Article 1159 of the Civil Code mandates:
Art. 1159. Obligations arising from contracts have the
force of law between the contracting parties and should be
complied with in good faith.
LACOSTE V FERNANDEZ
Facts:
La chemise Lacoste is a French corporation and the actual
owner of the trademarks Lacoste, Chemise Lacoste,
Crocodile Device and a composite mark consisting of the
word
Lacoste
and
a
representation
of
a
crocodile/alligator, used on clothing's and other goods sold
in many parts of the world and which has been marketed
in the Philippines (notably by Rustans) since 1964. In 1975
and 1977, Hemandas Q. Co. was issued certificate of
registration for the trademark Chemise Lacoste and
Crocodile Device "both in the supplemental and Principal
Registry. In 1980, La Chemise Lacoste SA filed for the
registration of the Crocodile device and Lacoste.
Games and Garments (Gobindram Hemandas, assignee of
Hemandas Q. Co.) opposed the registration of Lacoste.
In 1983, La Chemise Lacoste filed with the NBI a lettercomplaint alleging acts of unfair competition committed
by Hemandas and requesting the agencys assistance for
investigation and prosection.

A search warrant was issued by the trial court. Various

goods and articles were seized upon the execution of the
warrants. Hemandas filed a motion to quash the search
warrants alleging that the trademark used by him was
different from petitioner's trademark and that pending the
resolution of IPC No. 1658 before the Patent Office, any
criminal or civil action on the same subject matter and
between the same parties would be premature.
The petitioner filed its opposition to the motion arguing
that the motion to quash was fatally defective as it cited
no valid ground for the quashal of the search warrants and
that the grounds alleged in the motion were absolutely
without merit. The State Prosecutor likewise filed his
opposition on the grounds that the goods seized were
instrument of a crime and necessary for the resolution of
the case on preliminary investigation and that the release
of the said goods would be fatal to the case of the People
should prosecution follow in court, which the court
granted. The search warrants were recalled, and the goods
ordered to be returned. La Chemise Lacoste filed a petition
for certiorari.
The defendant argued that the petitioner has no capacity
to sue being a foreign corporation not doing business in
the Philippines.
Issue: Whether or Not the La Chemise Lacoste has
capacity to sue
Ruling: Yes
As early as 1927, this Court was, and it still is, of the view
that a foreign corporation not doing business in the
Philippines needs no license to sue before Philippine
courts for infringement of trademark and unfair
competition. Thus, in Western Equipment and Supply Co.
v. Reyes (51 Phil. 115), this Court held that a foreign
corporation which has never done any business in the
Philippines and which is unlicensed and unregistered to do
business here, but is widely and favorably known in the
Philippines through the use therein of its products bearing
its corporate and trade name, has a legal right to maintain
an action in the Philippines to restrain the residents and
inhabitants thereof from organizing a corporation therein
bearing the same name as the foreign corporation, when it
appears that they have personal knowledge of the
existence of such a foreign corporation, and it is apparent
that the purpose of the proposed domestic corporation is
to deal and trade in the same goods as those of the
foreign corporation. We further held:
". . . That company is not here seeking to enforce any
legal or control rights arising from, or growing out of, any
business which it has transacted in the Philippine Islands.
The sole purpose of the action: "'Is to protect its
reputation, its corporate name, its goodwill, whenever that
reputation, corporate name or goodwill have, through the
natural development of its trade, established themselves.
And it contends that its rights to the use of its corporate
and trade name: "'Is a property right, a right in rem, which
it may assert and protect against all the world, in any of
the courts of the world even in jurisdictions where it

does not transact business just the same as it may

protect its tangible property, real or personal, against
trespass, or conversion. Citing Sec. 10, Nims on Unfair
Competition and Trade Marks and cases cited; secs. 21-22,
Hopkins on Trade Marks, Trade Names and Unfair
Competition and cases cited.' That point is sustained by
the authorities, and is well stated in Hanover Star Mining
Co. v. Allen and Wheeler Co. (208 Fed., 513), in which the
syllabus says: "'Since it is the trade and not the mark that
is to be protected, a trade-mark acknowledges no
territorial boundaries of municipalities or states or nations,
but extends to every market where the trader's goods
have become known and identified by the use of the
mark.'" Our recognizing the capacity of the petitioner to
sue is not by any means novel or precedent setting. Our
jurisprudence is replete with cases illustrating instances
when foreign corporations not doing business in the
Philippines may nonetheless sue in our courts.

TAIWAN KOLIN CORPORATION, LTD., V.

KOLIN ELECTRONICS CO., INC.,
G.R. No. 209843,
March 25, 2015
Facts: Taiwan Kolin filed with the Intellectual Property
Office (IPO), then Bureau of Patents, Trademarks, and
Technology Transfer, a trademark application for the use
of KOLIN on a combination of goods particularly:
television sets, cassette recorder, camcorders and other
audio/video electronic equipment. Said goods allegedly fall
under Classes 9 of the Nice Classification (NCL).
Kolin Electronics Co., Inc. (Kolin Electronics) opposed the
application. As argued, the mark Taiwan Kolin seeks to
register is identical, if not confusingly similar, with its
KOLIN mark registered on November 23, 2003, covering
the following products under Class 9 of the NCL: automatic
voltage regulator, converter, recharger, stereo booster,
AC-DC regulated power supply, step-down transformer,
and PA amplified AC-DC.
In answer, Taiwan Kolin argued that it should be accorded
the benefits of priority right of a foreign-registered mark
under Secs. 3 and 131.1 of the Intellectual Property Code
of the Philippines since it has already registered the
KOLIN mark in Taipei, Taiwan on December 1, 1988.
Being parties to the Paris Convention for the Protection of
Industrial Property (Paris Convention) and the Agreement
on Trade-Related Aspects of Intellectual Property Rights
(TRIPS, benefits should be accorded to Taiwan Kolin for the
well-known mark.
The BLA-IPO denied Taiwan Kolins application and held
that a mark cannot be registered if it is identical with a
registered mark belonging to a different proprietor in
respect of the same or closely-related goods. The IPO
Director General reversed the prior decision. In so ruling,
the IPO Director General ratiocinated that product
classification alone cannot serve as the decisive factor in
the resolution of whether or not the goods are related and
that emphasis should be on the similarity of the products
involved and not on the arbitrary classification or general
description of their properties or characteristics. As held,
the mere fact that one person has adopted and used a
particular trademark for his goods does not prevent the
adoption and use of the same trademark by others on
articles of a different description.

Issue: Whether or not the products of the parties involved

are closely-related goods?
Ruling: No. Identical marks may be registered for
products
from
the
same
classification.
Mere uniformity in categorization, by itself, does not
automatically preclude the registration of what appears to
be an identical mark. Verily, whether or not the products
covered by the trademark sought to be registered by
Taiwan Kolin and those covered by the prior issued
certificate of registration in favor of Kolin Electronics fall
under the same categories in the NCL is not the sole and
decisive factor in determining a possible violation of Kolin
Electronics intellectual property right should petitioners
application be granted. It is hornbook doctrine that
emphasis should be on the similarity of the products
involved and not on the arbitrary classification or general
description of their properties or characteristics. The mere
fact that one person has adopted and used a trademark
on his goods would not, without more, prevent the
adoption and use of the same trademark by others on
unrelated
articles
of
a
different
kind.
The Court held that the goods should be tested against
several factors before arriving at a sound conclusion on
the question of relatedness. Among these are: (a) the
business (and its location) to which the goods belong; (b)
the class of product to which the goods belong; (c) the
products quality, quantity, or size, including the nature of
the package, wrapper or container; (d) the nature and cost
of the articles; (e) the descriptive properties, physical
attributes or essential characteristics with reference to
their form, composition, texture or quality; (f) the purpose
of the goods; (g) whether the article is bought for
immediate consumption, that is, day-to-day household
items; (h) the fields of manufacture; (i) the conditions
under which the article is usually purchased; and (j) the
channels of trade through which the goods flow, how they
are distributed, marketed, displayed and sold.
As
mentioned, the classification of the products under the
NCL is merely part and parcel of the factors to be
considered in ascertaining whether the goods are related.
It is not sufficient to state that the goods involved herein
are electronic products under Class 9 in order to establish
relatedness between the goods, for this only accounts for
one of many considerations enumerated.
It cannot be stressed enough that the products involved in
the case at bar are, generally speaking, various kinds of
electronic products. These are not ordinary consumable
household items. Accordingly, the casual buyer is
predisposed to be more cautious and discriminating in his
purchase. Confusion and deception, then, is less likely.
Expensive and valuable items are normally bought
only after deliberate, comparative and analytical
investigation. But mass products, low priced
articles in wide use, and matters of everyday
purchase requiring frequent replacement are
bought by the casual consumer without great care.
While both competing marks refer to the word KOLIN
written in upper case letters and in bold font, the Court at
once notes the distinct visual and aural differences
between them: Kolin Electronics mark is italicized and
colored black while that of Taiwan Kolin is white in pantone
red color background. The differing features between the
two, though they may appear minimal, are sufficient to
distinguish one brand from the other.
The ordinary purchaser was defined as one
accustomed to buy, and therefore to some extent
familiar with, the goods in question. The test of

fraudulent simulation is to be found in the likelihood of the

deception of some persons in some measure acquainted
with an established design and desirous of purchasing the
commodity with which that design has been associated.
The test is not found in the deception, or the possibility of
deception, of the person who knows nothing about the
design which has been counterfeited, and who must be
indifferent between that and the other. The simulation,
in order to be objectionable, must be such as
appears likely to mislead the ordinary intelligent
buyer who has a need to supply and is familiar with
the article that he seeks to purchase.
All told, the Court is convinced that Taiwan Kolins
trademark registration not only covers unrelated good, but
is also incapable of deceiving the ordinary intelligent
buyer. The ordinary purchaser must be thought of as
having, and credited with, at least a modicum of
intelligence to be able to see the differences between the
two trademarks in question.

CHESTER UYCO, WINSTON UYCHIYONG AND CHERRY

UYCO-ONG V VICENTE LO
G.R. No. 202423,
January 28, 2013
Facts:
Petitioners in this case are the officers of Wintrade
Industrial Sales Corp (WINTRADE), seller of kerosene
burners in the Philippines. Vicente Lo, on the other hand,
claims to be the asssignee of the disputed marks
"HIPOLITO & SEA HORSE & TRIANGULAR DEVICE," "FAMA,"
and other related marks, service marks and trade names
Casa Hipolito S.A. Portugal, to be used in kerosene
burners as well.
Lo further alleged that the ultimate owner of said
marks is the Portuguese Company GASIREL and that the
latter executed a deed of assignment in favor of Lo to use
the marks in all countries except Europe and America. Lo
subsequently authorized his agent Philippine Burners
Manufacturing Corporation (PBMC) to manufacture burners
with the aforementioned marks and trade name Casa
Hipolito S.A. Portugal.
During a test buy, Lo was able to purchase a
burner with marked "Made in Portugal" and "Original
Portugal". He noted that such burners were manufactured
by WINTRADE. As such, Lo filed a complaint on the ground
that the kerosene burners sold by WINTRADE have caused
confusion, mistake and deception on the part of the
buying public as to the origin of goods. WINTRADE and its
officers contend that the marks "Made in Portugal" and
"Original Portugal" refer to origin of the design and not
origin of the goods and that they have certificates of
registration with the IPO for use of marks, derived their
authority to use from WONDER, their predecessor-ininterest and that PBMCs licensing agreement with Lo is
ineffective for being unnotarized, among others.
Issue:
Whether or not WINTRADE and its officers are
liable for violation of the law on trademarks, tradenames
and false designation of origin?
Ruling::

Yes. WINTRADE and its officers are liable for

violation of the law on trademarks and tradenames and for
false designation of origin. They placed the words "Made
in Portugal" and "Original Portugal" with the disputed
marks knowing fully well because of their previous
dealings with the Portuguese company - that these were
the marks used in the products of another. More
importantly, they used the marks without any authority
from the owner notwithstanding that their products are, in
reality, produced in the Philippines, not in Portugal. Hence,
probable cause exists to charge the petitioners with false
designation of origin. Had they intended to refer to the
source of the design or the history of the manufacture,
they should have explicitly said so in their packaging. The
Supreme Court emphasized that the law on trademarks
and trade names precisely precludes a person from
profiting from the business reputation built by another and
from deceiving the public as to the origin of products.

MEDICAL PLAZA MAKATI CONDOMINIUM

CORPORATION (MPMCC) VS. ROBERT CULLEN
November 11, 2013
G.R. No. 181416
Topic: Condominium
Facts: Petitioner MPMCC is a condominium corporation
duly organized and existing under Philippine laws, charged
with the management of Medical Plaza Makati. Cullen
purchased from Meridien Land Holding Inc (MLHI)
condominium unit no. 1201 of Medical Plaza Makati. Later,
a Condominium Certificate Title was issued in his name.
Being a registered owner of a unit in Medical Plaza Makati,
he is therefore deemed a stockholder/member of the
condominium corporation.
On September 19, 2002, MPMCC demanded from
Cullen payment of unpaid association dues and
assessments amounting to 145K. MPMCC claimed that
the said obligation was a carry-over from MLHI. As a
consequence, Cullen was prevented from exercising his
right to vote and be voted during the 2002 election of
MPMCC Board of Directors.
However, when Cullen clarified with MLHI the
claims of MPMCC, MLHI claimed that the same had already
been settled with MPMCC as early as 1998. Cullen
demanded an explanation from MPMCC why he was
considered a delinquent payer, but MPMCCC was not able
to make any explanation. Cullen then filed a Complaint for
Damages against MPMCC and MLHI.
RTC dismissed the case of Cullen, ruling that
action for damages falls within the exclusive jurisdiction of
Housing and Land Use Regulatory Board (HLURB) as the
issues raised are intra-corporate between the petitionercorporation and the respondent-member. The CA reversed
and set aside the RC Decision and remanded the case to
the RTC for further proceedings.
Issue: Whether or not the RTC has jurisdiction over the
case. (NO)
Held: NO. The case at bar involves intra-corporate
controversy. An intra-corporate controversy is one which
pertains to any of the following relationships:
a
Between the corporation and the public
b Between the corporation and the State
c
Between
the
corporation
and
its
members
d Among its members

There are 2 tests to determine whether the

dispute constitutes an intra-corporate controversy: (a) The
relationship test; (b) The nature of the controversy test.
Under the relationship test, the existence of any of the
above relations makes a case intra-corporate; while under
the nature of the controversy test, the controversy must
not only be rooted in the existence of an intra-corporate
relationship, but must as well pertain to the enforcement
of the parties rights and obligations under the Corporation
Code and the internal rules of the corporation. The nature
of Cullens action, although titles as one for damages,
shows that it principally dwells on the propriety of
assessment made by MPMCC against Cullen as well as the
validity of MPMCCs act in prohibiting Cullen from
participating in the election of the its Board of Directors.
Thus, the nature of the action is clearly relates to intracorporate dispute.
Who has the jurisdiction over the case at bar?
Answer: RTC, not as a regular court, but RTC sitting as a
Special Commercial Court.
Contrary to RTCs contention, it is not the HLURB
who has the jurisdiction over the case at bar. Although RA
9904 or the Magna Carta for Homeowners and
Homeowners Associations empowers the HLURB to hear
and decide inter-association controversies concerning
homeowners associations. The same is not applicable to
the case at bar, as it involves a conflict between a
condominium unit owner and a condominium corporation.
RA 4726 or the Condominium Act was enacted
to specifically govern a condominium, therefore, RA 9904
may not be applied to this case as it is not the legislative
intent to extend its coverage to condominiums. Under the
law, the RTC sitting as Special Commercial Court has
jurisdiction over the controversies arising out of intracorporate relations. Therefore the CA erred when it
remanded the case to the RTC since the same is not a
Special Commercial Court who has jurisdiction over the
issue at hand.
Wherefore, petition granted and the case is
remanded to the RTC for re-raffle purposes among the
designated special commercial courts.
WEST TOWER v FIRST PHILIPPINE INDUSTRIAL
CORP.
FACTS:
Respondent FPIC operates two pipelines since
1969, the White Oil Pipeline (WOPL) System (covers a 117kilometer stretch from Batangas to the Pandacan Terminal
in Manila and transports diesel, gasoline, jet fuel and
kerosene) and Black Oil Pipeline (BOPL)system (105
kilometers and transports bunker fuel from Batangas to a
depot in Sucat, Paraaque. These systems transport
nearly 60% of the petroleum requirements of Metro Manila
and parts of the provinces ofBulacan, Laguna, and Rizal.
On May 2010, a leakage was suspected by the
residents of West Tower Condominium(West Tower) when
they started to smell gas. They reported the incident to
the Police Department of Makati and called the Bureau of
Fire Protection.
The two pipelines were supposedly designed to
provide more than double the standard safety allowance
against leakage, which is buried deeper than the standard
0.9 meters of the US, the pipelines are buried 1.5 meters.
FPIC initially disowned any leak from its oil
pipeline. Thus, the residents of West Tower shouldered the

expenses of hauling the waste water from its basement,

which eventually required the setting up of a treatment
plant in the area to separate fuel from the waste water.
On November 15, 2010, West Tower Condominium
Corporation (West Tower Corp.) interposed the present
Petition for the Issuance of a Writ of Kalikasan on behalf of
the residents of West Tower and in representation of the
surrounding communities in Barangay Bangkal, Makati
City. West Tower Corp. also alleged that it is joined by the
civil society and several people's organizations, nongovernmental organizations and public interest groups
who have expressed their intent to join the suit because of
the magnitude of the environmental issues involved.
Petitioners argued that FPIC's omission or failure
to timely replace its pipelines and to observe
extraordinary diligence caused the petroleum spill in the
City of Makati. Thus, for petitioners, the continued use of
the now 4 7-year old pipeline would not only be a hazard
or a threat to the lives, health, and property of those who
live or sojourn in all the municipalities in which the
pipeline is laid, but would also affect the rights of the
generations yet unborn to live in a balanced and "healthful
ecology,"(Sec. 16, Art. II of the 1987 Constitution).
On November 19, 2010, the Court issued the Writ
of Kalikasan with a Temporary Environmental Protection
Order (TEPO) requiring respondents FPIC and the Boards of
Directors to file their respective verified returns. The TEPO
enjoined FPIC to: (a) cease and desist from operating the
WOPL until further orders; (b) check the structural
integrity of the whole span of the 11 7-kilometer WOPL
while implementing sufficient measures to prevent and
avert any untoward incident that may result from any leak
of the pipeline; and (c) make a report thereon within 60
days from receipt thereof.
ISSUES:
1 WON West Tower has the legal capacity to
represent.
2 WON the directors and officers of respondents
FPIC and FGC may be held liable under the
environmental protection order.
3 WON a Permanent Environmental Protection Order
should be issued to direct the respondents to
perform or to desist from performing acts in order
to protect, preserve, and rehabilitate the affected
environment.
RULING:
1 Yes. It confirms the CA that petitioners who are
affected residents of West Tower and Barangay
Bangkal have the requisite concern to be real
parties-in-interest to pursue the instant petition.
They represent the common interest of its unit
owners and residents, and has the legal standing
to file and pursue the instant petition.
2 Hence, the Court will not rule on the alleged
liability on the part of the FPIC officials which can,
however, be properly resolved in the civil and
criminal cases now pending against them. The CA
found FPIC and their Directors and Officers not
liable under the TEPO and the individual directors
and officers of FPIC and FGC are not liable in their
individual capacities. The Court will refrain from
ruling on the finding of the CA that the individual
directors and officers of FPIC are not liable due to
the explicit rule in the Rules of Procedure for
Environmental cases that in a petition for a writ of
kalikasan. As duly noted by the CA, the civil case
and criminal complaint filed by petitioners against
respondents are the proper proceedings to
ventilate and determine the individual liability of
respondents, if any, on their exercise of corporate

powers and the management of FPIC relative to

the dire environmental impact of the dumping of
petroleum products stemming from the leak in the
WOPL in Barangay Bangkal, Makati City.
Petitioners' persistent plea is for the conversion of
the November 19, 2010 TEPO into a Permanent
Environmental Protection Order (PEPO). For its
part, respondent FPIC asserts that regular testing,
as well as the measures that are already in place,
will sufficiently address any concern of oil leaks
from the WOPL. With respect to leak detection,
FPIC claims that it has in place the following
systems: (a) regular cleaning scraper runs, which
are done quarterly; (b) pipeline integrity gauge
(PIG) tests/Intelligent PIG ( c)pressure monitoring
valves; and ( d) 24-hour patrols. Additionally, FPIC
asserted that it also undertook the following: (a)
monitoring of wells and borehole testing/vapor
tests; (b) leak tightness test, also known as
segment pressure test; ( c) pressure-controlled
test; ( d) inspection and reinforcement of patches;
(e) inspection and reinforcement of dents; and
(f)Pandacan segment replacement.
The CA,
however, observed that all of these tests and
measures are inconclusive and insufficient for
purposes of leak detection and pipeline integrity
maintenance.
The
Court
found
this
recommendation of the appellate court proper. It
required FPIC to obtain the adverted DOE
certification. It was deemed proper to require said
certification from the DOE considering that the
core issue of this case requires the specialized
knowledge and special expertise of the DOE. After
a perusal of the recommendations of the DOE and
the submissions of the parties, the Court adopts
the activities and measures prescribed in the DOE
to be complied with by FPIC as conditions for the
resumption of the commercial operations of the
WOPL. The DOE should, therefore, proceed with
the implementation of the tests proposed in the
said August 5, 2014 letter. Thereafter, if it is
satisfied that the results warrant the immediate
reopening of the WOPL, the DOE shall issue an
order allowing FPIC to resume the operation of the
WOPL. On the other hand, should the probe result
in a finding that the pipeline is no longer safe for
continued use and that its condition is
irremediable, or that it already exceeded its
serviceable life, among others, the closure of the
WOPL may be ordered.

SILVERIO V CA
FACTS: The instant controversy stemmed from the
settlement of estate of the deceased Beatriz Silverio. After
her death, her surviving spouse, Ricardo Silverio, Sr., filed
an intestate proceeding for the settlement of her estate.
The case was docketed as SP. PROC. NO. M-2629 entitled
In Re: Estate of the Late Beatriz D. Silverio, Ricardo C.
Silverio, Sr. v. Ricardo S. Silverio Jr., et al. pending before
the Regional Trial Court (RTC) of Makati City, Branch 57
(RTC). On November 16, 2004, during the pendency of the
case, Ricardo Silverio, Jr. filed a petition to remove Ricardo
C. Silverio, Sr. as the administrator of the subject estate.
On November 22, 2004, Edmundo S. Silverio also filed a
comment/opposition for the removal of Ricardo C.
Silverio, Sr. as administrator of the estate and for the
appointment of a new administrator. On January 3, 2005,
the RTC issued an Order granting the petition and
removing Ricardo Silverio, Sr. as administrator of the

estate, while appointing Ricardo Silverio, Jr. as the new

administrator.
On January 26, 2005, Nelia S. Silverio-Dee filed a Motion
for Reconsideration of the Order dated January 3, 2005, as
well as all other related orders.
On February 4, 2005, Ricardo Silverio Jr. filed an Urgent
Motion for an Order Prohibiting Any Person to
Occupy/Stay/Use Real Estate Properties Involved in the
Intestate Estate of the Late Beatriz Silverio, Without
Authority from this Honorable Court.
Then, on May 31, 2005, the RTC issued an Omnibus Order
affirming its Order dated January 3, 2005 and denying
private respondents motion for reconsideration. In the
Omnibus Order, the RTC also authorized Ricardo Silverio,
Jr. to, upon receipt of the order, immediately exercise his
duties as administrator of the subject estate. The Omnibus
Order also directed Nelia S. Silverio-Dee to vacate the
property at No. 3, Intsia, Forbes Park, Makati City within
fifteen (15) days from receipt of the order.
On June 16, 2005, private respondent filed a Motion for
Reconsideration dated June 15, 2005 of the Omnibus
Order. This was later denied by the RTC in an Order dated
December 12, 2005, which was received by private
respondent on December 22, 2005.
Notably, the RTC in its Order dated December 12, 2005
also recalled its previous order granting Ricardo Silverio, Jr.
with letters of administration over the intestate estate of
Beatriz Silverio and reinstating Ricardo Silverio, Sr. as the
administrator.
From the Order dated December 12, 2005, Ricardo
Silverio, Jr. filed a motion for reconsideration which was
denied by the RTC in an Order dated October 31, 2006. In
the same order, the RTC also allowed the sale of various
properties of the intestate estate of the late Beatriz
Silverio to partially settle estate taxes, penalties, interests
and other charges due thereon. Among the properties
authorized to be sold was the one located at No. 3 Intsia
Road, Forbes Park, Makati City.
Meanwhile, on January 6, 2006, Nelia Silverio-Dee filed a
Notice of Appeal dated January 5, 2006 from the Order
dated December 12, 2005 while the Record on Appeal
dated January 20, 2006 was filed on January 23, 2006.
Thereafter, on October 23, 2006, Ricardo Silverio, Jr. filed a
Motion to Dismiss Appeal and for Issuance of a Writ of
Execution against the appeal of Nelia Silverio-Dee on the
ground that the Record on Appeal was filed ten (10) days
beyond the reglementary period pursuant to Section 3,
Rule 41 of the Rules of Court.
Thus, on April 2, 2007, the RTC issued an Order denying
the appeal on the ground that it was not perfected within
the reglementary period. The RTC further issued a writ of
execution for the enforcement of the Order dated May 31,
2005 against private respondent to vacate the premises of
the property located at No. 3, Intsia, Forbes Park, Makati
City. The writ of execution was later issued on April 17,
2007 and a Notice to Vacate was issued on April 19, 2007
ordering private respondent to leave the premises of the
subject property within ten (10) days.

Consequently, private respondent filed a Petition for

Certiorari and Prohibition (With Prayer for TRO and Writ of
Preliminary Injunction) dated May 2, 2007 with the CA.
On May 4, 2007, the CA issued the assailed Resolution
granting the prayer for the issuance of a TRO. In issuing
the TRO, the CA ruled that the Notice of Appeal was filed
within the reglementary period provided by the Rules of
Court applying the fresh rule period enunciated by this
Court in Neypes v. Court of Appeals as reiterated in
Sumaway v. Union Bank.
ISSUE: WON CA erred in granting TRO and affirming that
there was a perfected appeal?
RULING: Yes. SC reversed CA.
The May 31, 2005 Order of the RTC is an Interlocutory
Order, Not Subject to an Appeal.
Verily, the appeal taken by the movant Nelia Silverio-Dee
from the Order of this Court dated December 12, 2005
denying the Motion for Reconsideration is misplaced as no
appeal may be taken from the order denying the motion
for reconsideration (see Section 1, Rule 41 of the 1997
Rules of Civil Procedure in relation to Section 1(f), Rule 109
of the Rules of Court). Furthermore, assuming that what
said movant had appealed is the final Order dated May 31,
2005, still, the appeal cannot be given due course as the
Record on Appeal had been filed beyond the thirty-day
period to appeal (see Section 3 Rule 41 of the Rules of
Court). A writ of execution issued must be enforced
against Nelia Silverio-Dee requiring her to vacate the
premises at No. 3 Intsia, Forbes Park, Makati City.
For the property at Intsia, Forbes Park cannot be occupied
or appropriated by, nor distributed to Nelia S. Silverio-Dee,
since no distribution shall be allowed until the payment of
the obligations mentioned in the aforestated Rule is made.
In fact, the said property may still be sold to pay the taxes
and/or other obligations owned by the estate, which will
be difficult to do if she is allowed to stay in the property.
Moreover, the alleged authority given by SILVERIO, SR. for
Nelia S. Silverio-Dee to occupy the property dated May 4,
2004, assuming it is not even antedated as alleged by
SILVERIO, JR., is null and void since the possession of
estate property can only be given to a purported heir by
virtue of an Order from this Court (see Sec. 1 Rule 90,
supra; and Sec. 2 Rule 84, Revised Rules of Court). In fact,
the Executor or Administrator shall have the right to the
possession and management of the real as well as the
personal estate of the deceased only when it is necessary
for the payment of the debts and expenses of
administration (See Sec. 3 Rule 84, Revised Rules of
Court). With this in mind, it is without an iota of doubt that
the possession by Nelia S. Silverio-Dee of the property in
question has absolutely no legal basis considering that her
occupancy cannot pay the debts and expenses of
administration, not to mention the fact that it will also
disturb the right of the new Administrator to possess and
manage the property for the purpose of settling the
estates legitimate obligations.
In the belated Memorandum of Nelia Silverio-Dee, she
enclosed a statement of the expenses she incurred
pertaining to the house renovation covering the period
from May 26, 2004 to February 28, 2005 in the total
amount of Php12,434,749.55, which supports this Courts
conclusion that she is already the final distributee of the
property. Repairs of such magnitude require notice,

hearing of the parties and approval of the Court under the

Rules. Without following this process, the acts of Nelia
Silverio-Dee are absolutely without legal sanction.
In the instant case, Nelia Silverio-Dee appealed the May
31, 2005 Order of the RTC on the ground that it ordered
her to vacate the premises of the property located at No. 3
Intsia Road, Forbes Park, Makati City. On that aspect the
order is not a final determination of the case or of the
issue of distribution of the shares of the heirs in the estate
or their rights therein. It must be borne in mind that until
the estate is partitioned, each heir only has an inchoate
right to the properties of the estate, such that no heir may
lay claim on a particular property. In Alejandrino v. Court of
Appeals, we succinctly ruled:
Art. 1078 of the Civil Code provides that where there are
two or more heirs, the whole estate of the decedent is,
before partition, owned in common by such heirs, subject
to the payment of the debts of the deceased. Under a coownership, the ownership of an undivided thing or right
belongs to different persons. Each co-owner of property
which is held pro indiviso exercises his rights over the
whole property and may use and enjoy the same with no
other limitation than that he shall not injure the interests
of his co-owners. The underlying rationale is that until a
division is made, the respective share of each cannot be
determined and every co-owner exercises, together with
his co-participants, joint ownership over the pro indiviso
property, in addition to his use and enjoyment of the
same.
Although the right of an heir over the property of the
decedent is inchoate as long as the estate has not been
fully settled and partitioned, the law allows a co-owner to
exercise rights of ownership over such inchoate right.
Thus, the Civil Code provides:
Art. 493. Each co-owner shall have the full ownership of
his part and of the fruits and benefits pertaining thereto,
and he may therefore alienate, assign or mortgage it, and
even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners,
shall be limited to the portion which may be allotted to
him in the division upon the termination of the coownership. (Emphasis supplied.)
Verily, once an action for the settlement of an estate is
filed with the court, the properties included therein are
under the control of the intestate court. And not even the
administrator may take possession of any property that is
part of the estate without the prior authority of the Court.

In the instant case, the purported authority of Nelia

Silverio-Dee, which she allegedly secured from Ricardo
Silverio, Sr., was never approved by the probate court.
She, therefore, never had any real interest in the specific
property located at No. 3 Intsia Road, Forbes Park, Makati
City. As such, the May 31, 2005 Order of the RTC must be
considered as interlocutory and, therefore, not subject to
an appeal.
Thus, private respondent employed the wrong mode of
appeal by filing a Notice of Appeal with the RTC. Hence, for
employing the improper mode of appeal, the case should
have been dismissed.
The implication of such improper appeal is that the notice
of appeal did not toll the reglementary period for the filing
of a petition for certiorari under Rule 65, the proper
remedy in the instant case. This means that private
respondent has now lost her remedy of appeal from the
May 31, 2005 Order of the RTC.

An interlocutory order, as opposed to a final order, was

defined in gTan v. Republic:
A final order is one that disposes of the subject matter in
its entirety or terminates a particular proceeding or
action, leaving nothing else to be done but to enforce by
execution what has been determined by the court, while
an interlocutory order is one which does not dispose of the
case completely but leaves something to be decided
upon. (Emphasis supplied.)