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INTELLECTUAL PROPERTY PHILIPPINES

BINALOT FIESTA FOODS, INC. IPV No.: 10-2007-00013 Complainant,

-versus- For: Trademark Infringement and/or Unfair Competition and Damages, with prayer for Preliminary Injunction

RAFAEL L. CHU, doing business under the name and style of NID's EXPRESS BINALOT

Respondent. x ------------------------------------------------------- x

DECISION

BINALOT FIESTA FOODS, INC. ("Complainant" or BINALOT FOODS for

brevity), a domestic corporation duly organized and existing under and by virtue of the

laws of the Republic of the Philippines with business address at 3841 Daffodil Street,

San Valley Subdivision, Paraiiaque City filed an action for TRADEMARK

INFRINGEMENT and UNFAIR COMPETITION against RAFAEL L. CHU, doing business

under the name and style of NID'S EXPRESS BINALOT, ( "Respondent"), a sole

proprietorship registered with the Department of Trade and Industry (DTI) with business

address at Paciano Rizal, Calamba City, Laguna due to Respondent's use of the

name and style NID'S EXPRESS BINALOT for its restaurant business, which

apparently is a colorable imitation of Complainant's registered service mark "BINALOT

& REPRESENTATION OF PINOY MEAL" under TM Registration No. 4-1996-106537,

filed with the Intellectual Property Office on 08 March 1996 in the name of the owner,

BINALOT FIESTA FOODS INC., for use on its local chain of fast-food restaurants

and/or catering services.

The grounds or causes of action relied upon by Complainant in filing the instant

suit were based on the provisions of Republic Act No. 8293 and their related provisions~

under the Rules and Regulations on Administrative Complaints for Violation of Laws;frW

Involving Intellectual Property Rights, to wit: I I

1 Republic of the Philippines

INTELLECTUAL PROPERTY OFFICE

_ .r

1. "Complainant adopted the word/term BINALOT as the dominant feature of its

corporate name, trade names, and trademark as early as December 2, 1995.

2. "On May 10, 1996, Complainant was duly registered as a corporation with the

Securities and Exchange Commission under the corporate name, BINALOT

FIESTA FOODS, INC., as shown in Exhibit "A".

3. "Complainant BINALOT FOODS is the registered owner of the following

tradenames and trademark, namely:

a) "BINALOT & REPRESENTATION OF PINOY MEAL under Registration

No. 4-1996-108867 issued on May 30, 2003 for use on catering services.

A photocopy of a Bureau of Legal Affairs' certified copy of Certificate of

Registration No. 4-1996-108867, together with the Declaration of Actual

Use, is hereto attached as Exhibit "B" and made an integral part hereof;

b) "BINALOT IN STYLIZED PRINT AGAINST A BANANA LEAF AND

REPRESENTATION OF BINALOT MASCOT under Registration No. 4

2003-009928 issued on October 24, 2005 for use on various food

products, namely: fiesta adobo, vivo tocino, pork bongga longanisa, no

bones daing na bangus, bistek walastik, tapa rap sarap, anytime inihaw

na baboy, my dinuguan and only, bopisticated, tenderloin tips, adobo rice.

A photocopy of a Bureau of Legal Affairs' certified copy of Certificate of

Registration No. 4-2003-009928 is hereto attached as Exhibit "C" and

made an integral part hereof;

c) "BINALOT BANANA LEAF WITH BINALOT I\lAME INSCRIBED IN THE

MIDDLE WITH THE MASCOT ON THE RIGHT SIDE under Registration

No. 4-2005-001022 issued on January 11 , 2007 for use on fast food chain

store. A photocopy of a Bureau of Legal Affairs' certified copy of

Application Serial No. 4-2005-001022 is hereto attached as Exhibit "D"

while a photocopy of a certified copy of Certificate of Registration No. 4~ 2005-001022 is hereto attached as Exhibit "D-1", and both are mad~

integral parts hereof. I I 2

4. "Complainant has been using its registered tradenames and trademark

(hereinafter, collectively called BINALOT, for brevity) since December 2, 1995

continuously up to the present.

Submitted herewith as Exhibits "E", "E-1" to "E-5", "F" and "F-1", "G", "H"

to "H-34". "I" and "J", and made integral parts hereof, are photocopies of Bureau

of Legal Affairs' certified documents, including Official Receipts which show the

earlier and continuous commercial use of the BINALOT tradenames and

trademark by Complainant.

The original certified true copies of Exhibits "A" to "J", will be presented

during the hearing of the prayer for the issuance of a writ of preliminary

injunction.

5. "Pursuant to Section 20 of Republic Act No. 166, as amended, under which law

Registration No. 4-1996 -108867 (Exhibit "B") was issued, and Section 138 of

Republic Act No. 8293, otherwise known as the Intellectual Property Code of the

Philippines (hereinafter, IP Code, for brevity), under which law Registration No.

4-2003-009928 and 4-2005-001022 (Exhibits "c" and "0") were issued,

Complainant's certificates of registration for the tradenames and trademark

BINALOT are prima facie evidence of their validity and the exclusive right of

Complainant to use said registered tradenames and trademark for the services

and goods specified therein and/or related thereto.

Section 20 of Republic Act No. 166, as amended, provides:

"Sec. 20. Certificate of registration prima facie evidence of validity. - A certificate of registration of a mark or trade name shall be prima facie evidence of the validity of the registration, the registrant's ownership of the mark or trade-name, and of the registrant's exclusive right to use the same in connection with the goods, business or services specified in the certificate, subject to any conditions and limitations stated therein."

While Section 138 of the IP Code provides:

"Sec. 138. Certificate of Registration. - A certificate of registration of a mark shall be prima facie evidence of the validity~ of the registration, the registrant's ownership of the mark and of ~ the registrant's exclusive right to use the same in connection r:

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goods or services and those that are related thereto specified in the certificate."

xxx

6. "On April 7, 2006, Complainant, through its undersigned counsel, sent by

registered mail a cease and desist letter to respondent at his address at Hi-Ion,

Paciano Rizal, Calamba City, laguna, a copy of which is hereto attached as

Exhibit "K" and made an integral part hereof.

Respondent duly received Exhibit "K" as evidenced by the Registry

Return Receipt, a copy of which is hereto attached as Exhbit "K-1 " and made an

integral part hereof.

7. "Instead of complying with Exhibit "K", respondent has continued operating, in

fact, even expanding the number of his food outlets and trading under the name

I\lid's EXPRESS BlI\lAlOT as his business name and tradename, and BINAlOT

as his trademark, without the consent of Complainant. As evidence of such

unauthorized use, Complainant submits herewith as Exhibits "l " to "l-4", sales

invoices issued by respondent's various food outlets, all of which are made

integral parts hereof.

8. "l ast October 1, 2007, Complainant served a final cease and desist letter upon

respondent, a copy of which letter is hereto attached as Exhibit "M" and made an

integral part hereof.

9. "Respondent's continuous unauthorized use of the name Nid's EXPRESS

BINAlOT as his business name and tradename, and BINAlOT as his trademark,

which is identical and/or confusingly similar to the registered corporate name,

tradenames and trademark of Complainant, particularly, the dominant feature

thereof, namely, the word BINAlOT, constitutes infringement of trademark as

defined and made actionable by Section 155 of the IP Code which provides:

"Sec. 155. Remedies; Infringement. - Any person who shall, without the consent of the owner of the registered mark:

Sec. 155.1. Use in commerce any reproduction; ~ counterfeit, copy or colorable imitation of a registered mark or theft

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same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the same of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

Sec. 155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or such advertisements intended to be used in commerce upon or in connection with the same, offering for sale, distribution , or advertising of goods or services or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, that the infringement takes place at the moment of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material."

10. "Under Section 156 of the IP Code, Complainant is entitled to the following

remedies for respondent's infringement of its registered tradenames and

trademark BINALOT. Thus, Section 156 provides:

"Sec. 156. Actions, and Damages and Injunction for Infringement. - 156.1. The owner of a registered mark may recover damages from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, had the defendant not infringed his rights, or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty, then the court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party.

156.2. On application of the complainant, the court may impound during the pendency of the action, sales invoices and other documents evidencing sales.

156.3. In cases where actual intent to mislead the public or to defraud the complainant is shown, in the discretion of the court, the damages may be doubled.

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156.4. The complainant, upon proper showing, may also be granted injunction."

11 . "In addition, respondent is also subject of the following administrative penalties

provided under Section 10.2 which provides:

"Sec. 10. The Bureau of Legal Affairs. - The Bureau of Legal Affairs shall have the following functions:

xxx

10.2. (a) Exercise original jurisdiction in administrative complaints for violations of laws involving intellectual property rights: Provided, That its jurisdiction is limited to complaints where the total damages claimed are not less than Two hundred thousand pesos (P200,000.00): Provided further, that availment of the provisional remedies may be granted in accordance with the Rules of Court. The Director of Legal Affairs shall have the power to hold and punish for contempt all those who disregard orders or writs issued in the course of the proceedings.

(b) After formal investigation, the Director for Legal Affairs may impose one (1) or more of the following administrative penalties:

(i) The issuance of a cease and desist order which shall specify the acts which the respondent shall cease and desist from and shall require him to submit a compliance report within a reasonable time which shall be fixed in the order;

(ii) The acceptance of a voluntary assurance of compliance or discontinuance as may be imposed. Such voluntary assurance may include one or more of the following :

(1) An assurance to comply with the provisions of the intellectual property law violated;

(2) An assurance to refrain from engaging in unlawful and unfair acts and practices subject of the formal investigation;

(3) An assurance to recall, replace, repair or refund the money value of defective goods distributed in commerce; and

(4) An assurance to reimburse the complainant the expenses and costs incurred in prosecuting the case in the Bureau of Legal Affairs.

require the respondent to submit periodic compliance reports and file a bond to guarantee compliance of his undertaking.

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(iii) The condemnation or seizure of products which are subjects of the offense. The goods seized hereunder shall be disposed of in such a manner as may be deemed appropriate by the Director of Legal Affairs, such as by sale, donation to distressed local governments or to charitable or relief institutions, exportation, recycling into other goods, or any combination thereof, under such guidelines as he may provide;

(iv) The forfeiture of paraphernalia and all real and personal properties which have been used in the commission of the offense ;

(v) The imposition of administrative fines in such amounts as deemed reasonable by the Director of Legal Affairs, which shall in no case be less than Five Thousand Pesos (P5,000) nor more than One Hundred Fifty Thousand Pesos (P150,000). In addition, an additional fine of not more than One Thousand Pesos (P1 ,000) shall be imposed for each day of continuing violation;

ei (vi) The cancellation of any permit, license, authority or

registration which may have been granted by the Office, or the suspension of the validity thereof for such a period of time as the Director of Legal Affairs may deem reasonable which shall not exceed one (1) year;

(vii) The withholding of any permit, license, authority, or registration which is being secured by the respondent from the Office;

(viii) The assessment of damages;

(ix) Censure; and

(x) Other analogous penalties or sanctions."

12. ''Through the years, Complainant has identified in the mind of the public the food

outlets it has opened directly, as well as through various franchisees carrying the

trademark BINALOT, and the food products it has been producing and selling in

these good outlets under the trademark BINALOT, as a result of which

Complainant has acquired property rights in the goodwill of the said food

business and services and food products which are entitled to be protected like

other property rights of Complainant.

In addition to Exhibits "E" to "E-5", Complainant submit as Exhibit "N~ current DTt registration of the business name BINALOT FIESTA FOODS, INCI(

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and as Exhibit "0", its current Business Permit issued by the City of Paraiiaque

and both exhibits are made integral parts hereof.

Further, in addition to Exhibits 'F-1", "I" and "J",printed brochures and food

wrapper it used earlier , Complainant submits herewith as Exhibits "P" to "P-4"

and made integral parts hereof, current brochures and food wrapper .

Likewise, Complainant submits herewith as Exhibits "Q" to "Q-11" and

made integral parts hereof, photographs of its various food outlets.

These exhibits show how Complainant's food outlets are designated and made

known and its food products are packed and sold.

13. "Submitted herewith as Exhibits "R" to "R-4" are flyers and wrappers being used

by respondent and as Exhibits "S" to "S-4", photographs of some of respondent's

food outlets , and both Exhibits "R" to "R-4" and "S" to "S-4" are made integral

parts hereof. These exhibits show the continuous and unauthorized use by

respondent of the name Nid's EXPRESS BINALOT and mark BINALOT in his

food outlets, flyers and wrappers, which would likely influence purchasers and

the public to believe that respondent's business is duly licensed by Complainant

and that its food products are manufactured/produced under license from

Complainant, when in fact, they are not authorized nor licensed. Respondent's

continuous and unauthorized use of the name and mark Nid's EXPRESS

BII\JALOT and BINALOT clearly shows his intention to ride on the popularity and

established goodwill of Complainant's corporate name, registered tradenames,

and trademark BINALOT.

14. "The continuous and unauthorized use by respondent of the name Nid's

EXPRESS BINALOT and mark BINALOT which are identical with, or confusingly

similar to the duly registered corporate name, tradenames, and trademark

BII\JALOT of Complainant, constitute unfair competition as defined under, and

made actionable by, Section 168 of the IP Code which provides:

"Sec. 168. Unfair Competition, Rights, Regulation and Remedies . - 168.1. A person who has identified in the mind oT"Q the public the goods he manufactures or deals in, his business or ~

services form those of others, whether or not a registered mark i~ jfr' employed, has a property right in the goodwill of the said gOOdS,!"I

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business or services so identified, which will be protected in the same manner as other property rights.

"168.2 Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefore.

"168.3 In particular, without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition:

(a) Any person who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor engaged in selling such goods with a like purpose;

(b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or

(c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another. xxx"

"168.4. The remedies provided by Sections 156, 157, and 161 shall apply mutates mutandis."

15. "By continuously using and operating a number of food outlets and trading under

the name and mark Nid's EXPRESS BINALOT, respondent is giving to

business and the food products he deals with, the general appearance of the

his

business and services and goods of Complainant.

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v '

16. "By continuously using and operating a number of food outlets and trading under

the name and mark Nid's EXPRESS BINALOT, respondent is giving to his

business and the food products he deals with, the general appearance of the

business and services and goods of Complainant.

17. "Pursuant to Section 168.4, in relation to Section 156 of the IP Code,

Complainant is entitled to recover profits actually made by respondent as a result

of his acts of unfair competition, or damages equivalent to a reasonable

percentage of the gross sales received by him in using and trading under the

name and mark Nid's EXPRESS BINALOT and BINALOT.

18. "In addition to actual damages which are estimated to be not less than Five

Hundred Thousand (P500,OOO.OO) Pesos, by way of example and correction for

the public good, and to prevent further incidents of blatant violations of

intellectual property rights, respondent should be made to pay Complainant, by

way of exemplary damages, an amount of not less than Two Hundred Thousand

(P200,OOO.OO) Pesos.

Respondent cannot feign ignorance of Complainant's earlier and

continuous use of its corporate name, tradenames, and trademark, all of which

carry the dominant word BII\JALOT, as Complainant has consistently advertised

its business and food products in the PLOT Directories since 1997 up to the

present as shown in a Certification issued by the Customer Support Manager of

Directories Philippines Corporation herewith marked as Exhibit "T', and samples

of the ads as Exhibits "T-1" and "T-2" and made integral parts hereof.

19. "As a result of respondent's unauthorized use of the name/mark BINALOT as the

dominant feature of his business/tradename and mark, despite repeated

demands upon him to cease and desist from doing so, Complainant was

constrained to engage the services of counsel to prosecute the instant suit.

Hence, respondent should be held answerable to Complainant for payment o~ attorney's fees in the sum of One Hundred Fifty Thousand (P150,OOO.OO) peso~

as well as litigation expenses as may be incurred and proved. / I

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20. "As the duly registered owner of the corporate name BINALOT FIESTA FOOD,

INC. and of the tradenames/trademark BINALOT, Complainant is entitled to the

exclusive use thereof in the Philippines and to prohibit other persons and entities

from using said registered corporate name, tradenames and trademark,

particularly, the dominant feature thereof, namely, BINALOT.

21. "Complainant is entitled to have the popularity and goodwill it has established in

the Philippines for its business and goods under its corporate name, registered

tradenames and trademark BINALOT, protected from acts of infringement and

unfair competition.

22. "Respondent has been ident ified as using and trading under the name Nid's

EXPRESS BINALOT and the mark BINALOT, without Complainant's consent.

Unless enjoined by this Honorable Office during the pendency of this suit,

respondent will continue with the unauthorized use of Nid's EXPRESS BINALOT

and BINALOT, thereby likely to continue to cause confusion as to the true status

of his business and goods, to the irreparable damage and prejudice of

Complainant and render any judgment ineffectual. The continuous damage

being suffered by Complainant is not susceptible of any fair or reasonable

redress. Accordingly, a writ of preliminary injunction against respondent, to enjoy

him from using Nid's EXPRESS BII\JALOT and/or the word BINALOT as part of

his business and goods the same general appearance as those of

Complainant's, during the pendency of this suit, is warranted.

23. "Furthermore, the deliberate and malevolent manner by which respondent has

refused to heed Complainant's demand to cease and desist from using Nid's

EXPRESS BINALOT and the word BINALOT as part of his business/tradename

and mark and in giving his business and goods the same connotation and

general appearance as those of Complainant, shows that serious and irrepara~

injury would be caused to Complainant while this case is pending. AccordingIY,~ the issuance of a writ of preliminary injunction, after due notice and hearing, i~ jJJ/ justified. /.(

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24. "Complainant is ready, willing and able to file a bond executed in favor of

respondent in the amount to be fixed by this Honorable Office, conditioned to

answer for all damages which respondent may sustain by reason of the issuance

of a writ of preliminary injunction.

25. "Attached hereto and made an integral part hereof is a duly notarized affidavit of

Complainant's President.

Respondent, through Counsel, filed his Answer and interposed the following

ADMISSIONS and DENIALS:

1. "Pars. 1 and 2 are denied for lack of knowledge and information sufficient to

form a belief as to the truth or falsity thereof;

2. "Par. 3 is admitted;

3. "Pars. 4, 5, 6, 6.a, 6.b, 6.c, and 7 including the exhibits appertaining thereto

are denied, for lack of knowledge and information sufficient to form a belief as

to the truth or falsity thereof;

4. "Pars. 8 and 9 are admitted only insofar as the cited specific provisons of law

but the rest of the allegations are denied for lack of knowledge and

information sufficient to form a belief as to the truth thereof;

5. "Par. 10 is admitted;

6. "Par. 11 is admitted only insofar as to the continued operation of respondent's

restaurant outlets under and using the trade name NID'S EXPRES~ BINALOT but the rest of the allegations are denied for lack of knowledge an~

information as to the truth or falsity thereof; II 7. "Par. 12 is admitted;

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8. "Pars. 13, 14 and 15 are admitted only insofar as the cited specific provisions

of law but the rest of the allegations are denied for being mere conclusions of

facts and for lack of knowledge and information as to the truth or falsity

thereof;

9. "Par. 16 is denied for lack of knowledge and information sufficient to form a

belief as to the truth or falsity thereof;

10. "Pars. 17, 18 and 19 are admitted only insofar s to the cited specific

provisions of law but the rest of the allegations are denied for being merely

conclusions of facts and for lack of knowledge and information sufficient to

form a belief as to the truth or falsity thereof;

11. "Pars. 20 and 21 are denied for being mere conclusions of facts and the law;

12. "Pars. 23, 24 and 25 are denied for lack of knowledge and information

sufficient to form a belief as to the truth thereof. If ever, complainant's

engagement of the services of their counsel is complainant's sole financial

risk.

13. "Pars. 26-32 relating to the allegations in support of the complainant's

application for a writ of preliminary injunction are denied for being mere

conclusions of law.

and raised in his Answer the following Special and Affirmative Defenses, to wit:

14. "CHU established and operated NID'S EXPRESS BII\JALOT as a

RESTAURANT in April 1998 having registered the said trade name as a

single proprietorship with the Department of Trade and Industry also in the

same year under Certificate of Registration No. 07331-98. Copy of t~

Certification issued by the Department of Trade and Industry of the fact of~ registration and of the renewed DTI Certificate of Registration are attached asy

Annexes 1 and 2 hereof; / I

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15. "CHU who has been a long time resident of Calamba City in Laguna where

he has been operating his other businesses in the same province, put up his

first restaurant outlet in the same city and adopted among many others, a

food fare consisting of cooked rice mixed with a native common Pilipino viand

and wrapped in a banana leaf commonly and generically described as

"binalot" and typical of local eating customs and practices in Laguna but also

practiced in many regions in the Philippines. Copy of the City Mayor's

Business Permit issued in 1998 is attached as Annex 3 hereof;

16. "There are now a total of ten (10) restaurant outlets with average seating

capacity of at least fifty (50) persons operated by CHU located at the

following addresses:

a. Crossing, Calamba City

b. Unit 2-3 Hilon Building, Brgy. Paciano, Calamba City

c. Brgy. Batong Malake, Los Banos, Laguna

d. National Highway, Pansol, Calamba City

e. Edsa, Kamias, Quezon City

f. Welcome Rotonda, Quezon City

g. Edsa Central, Mandaluyong

h. Fujitsu (Phils.) Canteen, Carmelray Industrial Park, Canlubang,

Laguna

i. Epson Phils. Canteen, Lima Technology Center, Lipa City,

Batangas

j. Quirino Avenue corner Mabini Street, Malate, Manila

17. "Unlike that of complainant's outlets, all of the respondent's outlets are full

service/ casual dining and stand alone restaurants primarily catering to walk

in customers, motorists, pedestrians or workers of nearby establishments

served by waiters/waitresses who get their food orders at their respective

table. Customers may also take out the food if they wish to;

18. "Complainant's business fast food outlets on the other hand, as alleged in it~ complaint are localed al shopping malls' lood courts and primarily serve Ih~

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so called ''food to go" items and caters to shoppers and take out orders from

office employees;

19. "Being its registered trade name, it is just normal and proper for CHU to use

NID'S EXPRESS BINALOT to identify his restaurant outlets, and CHU

believing in .good faith that such being the case, he has the legal right to

continue using the aforementioned trade style. As any other eatery,

customers come to respondent's restaurant simply because of their human

desire to eat and they are entitled to exercise their freedom to choose the

place to eat traditional Pilipino foods either for breakfast, lunch, merienda or

dinner as the case maybe, and NOT ON THE COMPLAINANTS

UNFOUNDED CLAIM THAT CUSTOMERS ARE ATTRACTED TO

COIVIPLAII\JANTS SUPPOSED "ESTABLISHED GOODWILL" or

"POPULARITY" and which complainant alleged that CHU's restaurant outlets

rode on such popularity or goodwill.

20. "Complainant's outfit which was established as a food catering business

mainly delivering packed meals to office employees, was not even into a

formal restaurant business when CHU established his restaurant in April

1998. Thus, it cannot be said that CHU capitalized on complainant's

"popularity" or "established goodwill" to advance his restaurant business.

21. ''The trade style NID'S EXPRESS BINALOT and/or NID'S BINALOT

LUGAWAN ATBP. being used by CHU to identify his restaurant outlets are

obviously distinct and not akin or similar to the alleged registered trade marks

of complainant. Respondent cannot be enjoined or prevented to use the

trade style NID'S EXPRESS BINALOT or NID'S BII\JALOT LUGAWAN ATBP.

as these names are not among those trade styles/marks alleged to have

been registered by the complainant with this Honorable Office.

22. "While complainant alleged that the dominant feature of its trademark is the

word "binalot", complainant cannot claim exclusive use for itself of the wor~

"blnalot" being a common word and generically used to describe common ~

native or traditional Pilipino packaging practices particularly tor tood items~

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Under the IP Code, words or phrases that are generic by its meaning, or

trademarks which have over time evolved or acquired a generic meaning

cannot be registered. Even assuming for the sake of arguments that the

word "binalot" alone, was inadvertently or wrongly registered as a trade mark

of a person or business entity, the mere registration of the generic word

cannot make the word non-generic for which the registrant's would have

acquired exclusive use or property rights and entitled to protection from

unauthorized use. Section 4, subpar.(e) of the Trademark Law provides:

Sec. 4. The owner of trade-mark, trade name or service-mark

used to distinguish his goods, business or services from the

goods, business or services of others shall have the right to

register the same unless it:

xxx xxx xxx

(e) Consists of a mark or trade-mark which, when applied to or

used in connection with the foods, business or services of the

applicant is merely descriptive or deceptively misdescriptive of

them, or when applied to or used in connection with the goods,

business or services of the applicant is primarily geographically

descriptive or deceptively misdescriptive of them, or is primarily a

surname."

"No one may appropriate generic or descriptive words,

(in this case the name "binalot"). They belong to the public

domain. (Ong Ai Gui vs. Director of Patents, 96 Phil. 673, 676

(1955).

In Asia Brewery Inc. versus the Hon. Court of Appeals and San

Miguel Corporation (G.A. 103543, July 05, 1993), the SC

reiterated that:

"A word or a combination of words which is merely descriptive o~ an article of trade, or of its composition, characteristics, or

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qualities, cannot be appropriated and protected as a trademark to

the exclusion of its use by others ... Inasmuch as all persons have

an equal right to produce and vend similar articles, they also have

the right to describe them properly and to use any appropriate

language or words for that purpose, and no person can

appropriate to himself exclusively any word or expression,

properly descriptive of the article, its qualities, ingredients or

characteristics, and thus limit other persons in the use of language

appropriate to the description of their manufactures, the right to

the use of such language being common to all. This rule

excluding descriptive terms has also been held to apply to trade

names... 1f they are thus descriptive and not arbitrary, they cannot

be appropriated from general use and become the exclusive

property of anyone." (52 Am. Jur. 542-543).

23. "It is very clear in the allegations in the complaint that what complainant

claimed to have registered are the trademarks:

a. "BINALOT & REPRESENTATION OF A PINOY MEAL";

b. "BINALOT IN STYLIZED PRINT AGAINST A BANAN LEAF AND

REPRESENTATION OF BINALOT MASCOT";

c. "BINALOT & DEVICE".

As allegedly registered, the marks included the word "binalot", only as

part of the registered marks and never the particular word "binalot" standing

alone, since the word "binalot" standing alone is not legally registrable as

trade-mark for the exclusive use by the registrant, being GENERIC and

DESCRIPTIVE.

24. "Being a GENERIC and a DESCRIPTIVE word, no person cannot claim

exclusive ownership of the use of the word "binalot".

25. "Neither can CHU be prevented or enjoined to use as his tradename oR

tradestyles the phrases, NID'S EXPRESS BINALOT and NID'S BINAL01'

17

I '

LUGAWAN ATBP. as complainant does not have property rights/ownership

over them, not being among those it allegedly registered with the IPO.

26. "Complainant cannot likewise claim exclusive use or acquired property rights

on the use of the banana leaf image in lush green as part of his trademark as

such will unjustly deprive all the rest of the world who are also entitled to the

use of a replica or image of a common tropical banana plant.

27. "Finally, CHU's business tradestyles are not identical and/or confusingly

similar to complainant's registered corporate name, tradenames or trademark

as to cause mistake or to deceive the public or eating customers, in view of

the fact that CHU's restaurants serve a different market segment as against

that of complainant. Additionally, the complainant cannot claim property

rights on Pilipino foods such as adobo, pakbet, tocino, tapa, tapsilog,

longganisa, daing na bangus, bistek, inihaw na baboy, dinuguan and other

typical Pilipino food fares as to prevent other persons from selling the same

products.

28. "The "binalot" meals served by CHU is only among the many food products

offered in his restaurant. Even then, CHU's "binalot" meals are being served

on locally handcrafted rattan plates as against that of complainant's which is

being served over the counter and wrapped in a brown paper both for the

take out and those eaten in food courts. On the other hand, take out orders

of common Pilipino foods at CHU's restaurants are placed inside a styrofoam

packaging. It is very clear that CHU could not have possibly or would likely

influence purchasers and customers of his restaurant to believe that the

goods offered are those of the complainant and to have deceive the public.

In view thereof, CHU could not have committed alleged unfair competition

against the complainant, as contemplated by law.

Likewise, the following compulsory counterclaims were raised by Respondent, to wit:

~29. "Despite actual knowledge that complainant does not have any cause

action against the respondent, complainant filed this clearly baseless an~

18

, .

unfounded suit thereby compelling respondent to engage the services of

undersigned counsel for a stipulated fee of P150,000.00.

30. "The bringing of this baseless suit against the respondent tarnished his name

and reputation among his business clients and associates for which

complainant must be adjudged liable in the form of moral damages in the

amount of P250,000.00.

31. "To set an example for the public good and to defer others from filing such

baseless suits , complainant must be liable to respondent in the form of

exemplary damages in the amount of at least P200,000.00.

Respondent CHU anchored its opposition to the application for issuance of a writ

of preliminary injunction on the following grounds:

32. "Complainant is not entitled to a writ of preliminary injunction as it does not

appear in the allegations in the complaint that great or irreparable injury

would result to the complainant. The respondent just like the general public

has as much right as the complainant for the use of the descriptive word

"binalot".

33. "The alleged irreparable injury on the part of the complainant is merely

imagined as the continued operation by CHU's restaurant does not deny nor

can anyway deprived the complainant of revenues from its own fast food

outlers .

34. "On the other hand, the issuance of a writ of preliminary injunction while the

main action is being heard, would unjustly deny CHU his inherent right to do

business and would cause undue and great damage on his restaurant

business.

On 23 May 2008, this Bureau issued Order No. 2008-36, granting comPlainant~ application or prayer for the issuance of a writ of preliminary injunction as embodied r

19

the verified Complaint filed on 22 November 2008. The salient portions of the subject

2008 Order read, viz.:

"The Complainant was able to show its clear and unmistakable

right. Examining the pertinent allegations of the complaint and the

evidences supporting them, the existence of a valid certificate of

registration for Complainant's claimed mark BINALOT and the

representation of BANANA LEAF (Exhibits B, 0, 0-1, C) is

immediately apparent. For the purpose of granting the injunctive

writ, no less than a certificate of registration is necessary to

demonstrate one's clear and unmistakable right. Under Section

138, R.A. 8293, notably, a certificate of registration constitutes

prima facie evidence of the registrant's ownership of a mark or

name. xxx WHEREFORE, let a Writ of Prelimimary Injunction be

issued upon Complainant's filing, within seven days from receipt

hereof, of the cash bond hereby fixed at Seventy Five Thousand

Pesos (P75,OOO.00) executed to the Respondent to the effect that

the Complainants will pay damages that the Respondent may

sustain by reason of the Writ of Preliminary Injunction in the event

that this Office should finally decide that the Complainants are not

entitled thereto. The reckoning of the 90-day period of the Writ of

Preliminary Injunction shall be upon receipt by Respondent of the

Order issued by this Office approving the subject bond."

Summary of Proceedings

In November 2007, Complainant filed this instant suit for TRADEMARK

INFRINGEMENT and/or UNFAIR COMPETITION against Respondent, arising from

Respondent's use of the trade name NID'S EXPRESS BINALOT for their food or

restaurant business which is confusingly similar to or a colorable imitation of

Complainant's service and trade marks BINALOT & REPRESENTATION OF PINO~

MEAL, BINALOT IN STYLIZED PRINT AGAINST A BANANA LEAF AND ~

REPRESENTATION OF BINALOT MASCOT and BINALOT BANANA LEAF WIT~

20

BINALOT NAME INSCRIBED IN THE MIDDLE WITH THE MASCOT ON THE RIGHT

SIDE. Complainant BINALOT FIESTA FOODS, INC. was incorporated in 1996 (Exhibit

'~ ", Complainant). It filed for its first service mark BINALOT & REPRESENTATION OF

PINOY MEAL (Exhibit "B", Complainant) under Class 42 in March 1996 and obtained

registration in 2003. Respondent, on the other hand, started operating in 1998 using

the trade name NID'S EXPRESS BINALOT with its first outlet located at Sta. Rosa ,

Laguna. When Complainant came to know of the existence of Respondent's

business in 2006 under the name and style NID'S EXPRESS BINALOT, a demand

letter was sent to Respondent requiring the latter to desist from further using the trade

or business name NID'S EXPRESS BINALOT under pain of legal action . For failure of

Respondent to cease operating said food business under the name and style NID'S

EXPRESS BINALOT or t\lID'S BINALOT LUGAWAN ATBP, Complainant filed this

instant suit in November 2007. Respondent filed their Answer on January 10, 2008.

The issues having been joined, pre-trial and subsequently, trial on the merits ensued .

Admitted as documentary evidence for the Complainant are Exhibits "A" to "CC"

including their sub-markings, consisting of, among others: Complainant's Certificate of

Incorporation, together with its Articles of Incorporation (Exhibit "A"); Bureau of Legal

Affairs' certified copy of Certificate of Registration No. 4-1996-108867 for the trade name

BINALOT & REPRESENTATION OF PINOY MEAL issued on May 30,2003 for use on

catering services (Exhibit "B"); Bureau of Legal Affairs' certified copy of Certificate of

Registration No. 4-2003-009928 for the trademark BINALOT IN A STYLIZED PRINT

AGAINST A BANANA LEAF AND REPRESENTATION OF BINALOT MASCOT issued

on October 24, 2005 for use on varoius food products (Exhibit "C"); Bureau of Legal

Affairs' certified copy of Application Serial No. 4-2005-001022 for the trade name

BINALOT BANANA LEAF WITH BINALOT NAME II\ISCRIBED IN THE MIDDLE WITH

THE MASCOT ON THE RIGHT SIDE filed on February 2, 2005 for use on fast food

chain store (Exhibit "D"); Certified copy of Certificate of Registration No. 4-2005-001022

for the trade name BINALOT BANANA LEAF WITH BII\IALOT NAME INSCRIBED 11\1

THE MIDDLE WITH THE MASCOT ON THE RIGHT SIDE issued on January 11, 2007

(Exhibit "D-1"); Certificate of Registration issued by Bureau of Internal Revenue to

BINALOT FIESTA FOODS, INC. on May 22, 1996 (Exhibit "E"); Mayor's Permit issued--:-J

by the Office of the Mayor of City of Mandaluyong (Exhibit "E-1"); Social Security~ System Special Bank Receipt No. 135315 issued ot Binalot Fiesta Foods, Inc. (Exhibit (

21

, ,

"E-3"); Contract of Lease for BINALOT, Greenbelt Park, Ayala Center, Makati City

(Exhibit "F"); Flyer of BINALOT FIESTA FOODS, INC. (Exhibit "F-1"); Franchise

Agreement between Binalot Fiesta Foods, Inc. and Henry Fernandez dated February 4,

1999 (Exhibit "G"); Several Check Disbursement Vounchers of Binalot Fiesta Foods,

Inc. (Exhibits "H-1" to "H-34"); Plastic packaging and letterhead of Binalot Fiesta Foods,

Inc. (Exhibit "I"); Wrapper of Binalot Fiesta Foods, Inc. (Exhibit "J"); Demand letter of

Binalot Fiesta Foods, Inc.'s counsel dated April 7, 2006 to Nid's EXPRESS BINALOT

(Exhibit 'K"); Official Receipt No. 56344 of Nid's EXPRESS BINALOT dated December

8, 2006 issued to Edwin Guijano (Exhibit "L"); Official Receipt No. 57007 of Nid's

EXPRESS BINALOT dated December 12,2006 (Exhibit "L-1"); Official Receipt No. 3867

of Noble Coin Enterprises - Branch dated December 12, 2006 (Exhibit "L-2"); Official

Receipt No. 2526 of Noble Coin Enterprises dated October 10, 2007 (Exhibit "L-3");

Official Receipt No. 71988 of Nid's EXPRESS BINALOT dated October 10, 2007 (Exhibit

"L-4"); Second demand letter of Binalot Fiesta Foods, Inc.'s counsel dated October 11,

2007 to Nid's EXPRESS BINALOT (Exhibit "M'); Certificate of Business Name

Registration No. 00281125 of Binalot Fiesta Foods, Inc. issued by Department of Trade

and Industry on December 19, 2006 (Exhibit "N'); Business Permit No. 18731 of Binalot

Fiesta Foods, Inc. issued by the Office of the Mayor, City of Parafiaque on January 22,

2007 (Exhibit "0"); Flyers, Plastic Packaging and Wrappers of Binalot Fiesta Foods, Inc.

(Exhibits "P" to "P-4"): Photographs of various store outlets of Complainant Binalot

Fiesta Foods, Inc. (Exhibits "a" to "0-11"); Flyers and packagings of Nid's EXPRESS

BINALOT (EXhibits "R" to "R-4"); Photographs of various store outlets of Nid's EXPRESS

BINALOT (EXhibits "S" to "S-4"); Certification dated December 18, 2006 issued by

Directories Philippines Corporation (Exhibit "T); Pages 475 and 527 of the PLOT yellow

page showing advertisements of Complainant (Exhibits "T-1" and "T-2"); Duly notarized

affidavit of Rommel T. Juan, President of Complainant Binalot Fiesta Foods, Inc. (Exhibit

"U"); Photographs of Complainant's various BINALOT food stores (EXhibits "V" to "V

33"); Photographs of Respondent's I\lid's BII\lALOT various food stores/outlets (Exhibits

"w" to 'W-6"); Menu flyers and packaging of Respondent taken after issuance of a writ of

preliminary injunction (Exhibits "X" to "Z"); Affidavit of Rommel T. Juan, President ~ Complainant (Exhibit "AA"); Franchise Agreement between Complainant and Irell Gp

Perez dated March 11,2008 (EXhibit "BB"). / I Complainant presented Mr. Rommel T. Juan as its witness.

22

Admitted as documentary evidence for the Respondents are Exhibits "4" to "15"

including their sub-markings, consisting of: Duly Notarized Judicial Affidavit of Rafael L.

Chu (Exhibit "4"); Certificate of Business Name Registration issued by the Dept. of Trade

and Industry and the Application for Sole Proprietorship (Exhibits "5" and "5-a"); BIR

Certificate of Registration (Exhibit "6"); Nid's Express Binalot's Operational Framework

(Exhibits '7", "7-a" to "7-g"); Food Profile and Official Menu (Exhibits "8", "8-a", "8-b", "8

c" & "8-d"); Official Tradestyle of Nid's Express Binalot (Exhibit "9"); Styrofoam Box with

respondent's trade style on it printed in color green (Exhibits "10" & "10-a"); Plastic bad

with respondent's trade style on it, printed in color green (Exhibit "11"); Pictures of the

interiors of the UDMC Branch of Nid's Binalot Lugawan Atbp . (Exhibit "12"); Pictures of

the facade and the interiors of respondent's three (3) restaurant outlets: Welcome

Rotunda; EDSA Central and EDSA-Kamias (Exhibit "13"); Pictures of complainant's

food outlets in Galleria Food Court, Shangri-la Mall Food Court and in Greenbelt Mall

(Exhibits "14" & "15").

Respondent presented the following witnesses: Mr. Rafael Chu and Prof.

Emilita L. Cruz.

Issues

1. Whether or not there is infringement by Respondent of the following

trademarks and serv icemark of Complainant :

a). "BINALOT & REPRESENTATION OF PINOY MEAL;

b). "BINALOT IN STYLIZED PRINT AGAINST A BANANA LEAF AND

REPRESENTATION OF BINALOT MASCOT; and

c). "BINALOT BANANA LEAF WITH BINALOT NAME INSCRIBED IN

THE MIDDLE WITH THE MASCOT ON THE RIGHT SIDE.

2. Whether or not Respondent's use or adoption of the mark or

tradename "NID'S EXPRESS BINALOT" lncludinq symbols andR devices similar to Complainant's "BINALOT & REPRESENTATIO~

23

OF PINOY MEAL, "BINALOT IN STYLIZED PRINT AGAINST A

BANANA LEAF AND REPRESENTATION OF BINALOT MASCOT;

and "BINALOT BANANA LEAF WITH BINALOT NAME INSCRIBED

IN THE MIDDLE WITH THE MASCOT ON THE RIGHT SIDE, in

connection with his business constitutes unfaircompetition.

3. Whether or not Respondent is liable for damages.

Discussion

The rights of both parties have to be examined based upon the law and the

relevant facts established in this case.

Before us is a case or a suit for trademark infringment and/or unfair competition and

damages with prayer for preliminary injunction maintained due to the adoption by Respondent of

the tradename NID'S EXPRESS BINALOT for his food business which is a colorable imitation of

Complainant's service and trade marks "BINALOT & REPRESENTATION OF PINOY

MEAL, "BINALOT IN STYLIZED PRINT AGAINST A BANANA LEAF AND

REPRESENTATION OF BINALOT MASCOT and "BINALOT BANANA LEAF WITH


SIDE". Both parties operate a restaurant that offers filipino dishes. Respondent earlier

claimed that Complainant cannot have exclusive use of the word or term BINALOT for restaurant

business, being generic and descriptive, hence not legally registrable, nor can Complainant acquire

property rights on Filipino foods such as adobo, pakbet, tocino, tapa etc. To make out a case of

infringement, the Court in Etepha vs. Director of Patents, (G.R. No. L-20635. March 31, 1966)

believed that among other important factors and consideration, validity ofa cause for infringement

should be predicated upon colorable imitation. The same Court went further by defining or

explaining the concept of orwhat essentially constitutes a colorable imitation, thus, 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 usuallly

gives, and to cause him to purchase the one supposing it to be the other". At the core of th~

issues presented before this forum is the appropriation of the word BINALOT in Respondent'r

24

mark or trade name NID'S EXPRESS BINALOT which is considered a colorable imitation of the

dominant, essential and distinguishing features of Complainant's service and trade marks, the

dominant being the word BINALOT. The pinoy meal forming part of Complainant's service mark

BINALOT & REPRESENTATION OF PINOY MEAL (Exhibit "B", ComplainanQ and printed at the

bottom of the label orjust right below the very prominent and dominant word BINALOT are generic

rerpesentation/device not capable of appropriation, which resulted in having this representation or

device disclaimed in the process to gain registration. The adoption by Respondent ofa dominant

portion of Complainant's service or trade marks for use on identical service/s which is food

business constitutes an infringement of Complainants trademark rights. Likewise, the term

BINALOT forms part of Complainant's corporate name BINALOT FIESTA FOODS

INCORPORATED which was incorporated in May 09, 1996 (Exhibit '~", ComplainanQ. Under

similar circumstances, the Court ruled in the case of Converse Rubber Corporation vs. Universal

Rubber Products. Inc. and Tiburcio S. Evalle (G.R. No. L-27906. Jan. 18, 1987 ), thus:

"From a cursory appreciation of the petitioner's corporate name "CONVERSE RUBBER CORPORA nON, it is evident that the word u CONVERSE" is the dominant word which identifies petitioner from other corporations engaged in similar business xxx. Knowing, therefore, that the word "CONVERSE" belongs to and is being used by petitioner, and is in fact the dominant word in petitioner's corporate name, respondent has no right to appropriate the same for use on its products which are similar to those being produced bypetitioner. u

The choice of the word BINALOT and the inclusion of NID'S EXPRESS before it

(Exhibits "5" and "5-a", RespondenQ do not make Respondent's mark 1\lID'S EXPRESS

BINALOT any different, the marked similarities of the two labels are more evident and

pronounced. In fact, in Respondent's registration with several government agencies

such as the Department of Trade and Industry (DTI), the Bureau of Internal Revenue

(BIR) and Respondent's application for Mayor's Permit, the business name NID'S

EXPRESS BINALOT was the settled or preferred business name of Respondent.

However, in almost all of the food outlets of Respondent, what is used as signage is

NID'S BINALOT with the word BINALOT dominating the whole feature. On this point,

we take note of Respondent CHU's testimony during cross-examination stating, thus:

~ATTY. SIOSON: In other words, consistently in all your signages, food brochures, food profile you ~ do not use the word Express? ( I

25

WITNESS:

ATTY. SIOSON:

WITNESS:

ATTY. SIOSON:

WITNESS:

ATTY. SIOSON:

WITNESS:

ATTY. SIOSON:

WITNESS:

ATTY. SIOSON:

WITI'JESS:

ATTY. SIOSON:

WITI'JESS:

ATTY. SIOSON:

WITNESS:

We do not put our Business Name Nid's Express Binalot .

No, I'm only asking you...

I answered ...

No, I'm only asking if you are putting the word...

No, I did not put the word Express, but we use the Business Name Nid's Express Binalot.

What do you use Nid's ...

We...

Wait, so there will be no confusion.

Sorry.

So where do you use the Business Name that you have registered with the OTI and the BIR Nid's Express Binalot?

When we get Mayor's Permit we used Nid's Express Binalot, in our invoices we have to use Nid's Express Binalot. SSS we use Nid's Express Binalot. In our store has a frame of OTI, all our OTI, Mayor's Permit shows Nid's Express Binalot. When you go inside the store everybody is about three (3) of four (4) frames, it show Nid's Express Binalot as our Business Name.

But never is the signages and in the food flyers and in the food menu does, do you use the complete name Nid's Express Binalot?

We do not use Nid's Express Binalot in our signage, but we use our logo.

What you use in your signages and in your flyers, food profiles and so forth, is the phrase Nid's Binalot Lugawan atbp?

~ Yes. [TSN, February 5,2008, pp. 36-38Jr

,I 26

x x x

Respondents cannot assert identity or distinctiveness, by mere looking at the

questioned signage or business name, one can readily observe that Respondent has

indeed used and appropriated the dominant features of Complainant's service mark

which in this case is the concept of using the dominant word BINALOT as against a

BANANA LEAF (EXhibits "C" and "0", Complailnant). This word and device combination

of BINALOT as against a BANANA LEAF becomes the source of confusion because it

presents to filipino food lovers the striking and illuminating similarities of the two labels or

signages as shown below:

Complainant's BINALOT servicemark Respondent's NID'S EXPRESS BINALOT Trademark Reg. No. 42003009928 DTICert.No.00103199

Noticeably, there are variations such as the use of others words NID'S, EXPRESS,

LUGAWAN ATBP, however, the word BINALOT as against a BANANA LEAF remains

the prominent and distinctive feature in Respondent's NID'S BINALOT LUGAWAN

ATBP, the insertion of the words NID'S EXPRESS LUGAWAN ATBP printed in small

letters and placed above and below the word BINALOT as against a BANANA LEAF are

insignificant as to yield a distinct appearance not only because it is printed in small

letters and these words are placed above and below the word BINALOT as against a

BANANA LEAF but the word BINALOT standing alone has continued to create confusion

between the competing marks, signanges or labels.

In the case of Emerald Garment Mfg. Corp. vs. Court of Appeals, 251 SCRA

600, the court ruled, thus:

"While it is true that there are other words such as "STYLISTIC", printed~ in the appellant's label, such word is printed in such small letters over th~

27

word "LEE" that it is not conspicuous enough to draw the attention of ordinary buyers whereas the word "LEE" is printed across the label in big, bold letters and of the same color, style, type and size of lettering as that of the trademark of the appellee. The alleged difference is too insubstantial to be noticeable."

On the other hand, as contended by Respondent, the food presentation and the type of

outlet plainly showed the marked contrast between the two labels or signages . The sole

proprietor Mr. Rafael Chu, Respondent himself, testified to the effect that:

ATTY. UMADHAY: So can we show the food products presentation?

HEARING OFFICER: OK.

ATTY. UMADHAY: Can I request the witness to do it for us, your honor? I am not in the position to do it.

HEARING OFFICER: Ok.

WITNESS: When you come to NID'S EXPRESS BINALOT Restaurant, when you order for food, actually we have several types of food. One of the food category is BINALOT, Binalot sa Dahon. So when you order, let's say I want to order Chicken Adobo Binalot Special, so it comes like this. Its wrapped in a banana leaf, it's typical of a Binalot, we have there the food, the rice and the egg, and the tomato. And then if you want to take it out, we put it in a styropor to make it easy to carry and not messy and if you want to eat in a certain place and you don't have a plate, you can use this as your plate. So this is the take out styro, so this is why its different from what they have, while they wrap it is a piece of paper. We have some sort of styro to hold the food and use it as a plate. And then when you eat it in a restaurant, so the server, all our restaurants have servers, its not like the Complainant where you can pinpoint or go to the counter , order, and then make your food. So what the staff will do. They will put this in a bilao, and when serve it in the table, just to make sure that this doesn't, its clean and its not~ they will serve it like that on the table to YO~:fr So when il comes to me, when I want to e"/I

28

I'll just take this out, I'll open up the spoon and fork and eat accordingly. So that's how you put out and how you are served in our restaurant, Binalot sa Dahon with the plate bilao. So that's the way it is [TSN, March 24, 2009, pp. 10-11].

x x x

but an ordinary filipino food lover will just ignore these different food product

presentation and/or outlet design thinking that it may be variations of the same service

mark or an offshoot or a derivative of Complainant's service mark.

By and large, what is infringing or the very reason why this Bureau concludes that

Respondent's use ofNID'S EXPRESS BINALOT comports with a finding of trademark infringement

is the use or adoption of the word BINALOT as against a BANANA LEAF. Respondent is not

precluded from operating or continuing with its restaurant or food business seNing filipino dishes

contrary to what was obtaining in Respondent's arguments:

ATTY. UMADHAY: You will also admit that all the foods that you are serving are native Filipino foods, is that correct?

WITNESS: Yes.

ATTY. UMADHAY: Which are of course, ordinary foods by Filipinos and may be served by anyone, by any Filipino for that matter, is that correct?

WITNESS: Yes.

ATTY. UMADHAY: You also don't have exclusive ownership of food products such as Adobo, is that correct?

WITNESS: Yes.

ATTY. UMADHAY: You don't have exclusive ownership o~ Filipino food product Adobo, is that correct? ~

IlWITNESS: Yes.

29

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

WITNESS:

ATTY. UMADHAY:

it is basically the use of

As well as Tocino, is that correct?

Yes.

As well as Longganisa?

Yes.

Daing na Bangus?

Yes.

Bistek?

Yes.

Tapa?

Yes.

Inihaw na Baboy?

Yes.

Dinuguan?

Yes.

Bopis?

Yes.

Tenderloin tips?

Yes.

Adobo?

Yes.

That's all, your honor. [TSN, 10 January 2008, pp. 27-30).

x x x

the word BINALOT as against a BANANA LEAF that forms

an essential part of Respondent's trade name NID'S EXPRESS BINALOT that is bein9-.c7_

put to issue in this suit for determination and for this Bureau to consider whether ~

Complainant has a priority or preferential rightls over the mark BINALOT as against aY 3~ I

BANANA LEAF. The combination of the word BINALOT as against a BANANA LEAF

presents a very unique and distinctive choice of word and device combination to arrive

at a registrable service or trademark for a restaurant business offering filipino food, this

concept of associating the word BINALOT as against a BANANA LEAF becomes

Complainant's source identifier. Respondent's union of the BINALOT as against a

BANANA LEAF or use of the dominant word BINALOT for a food or restaurant business

offering filipino dishes is identical or closely resembles Complainant's service and trade

marks BINALOT & REPRESENTATION OF PINOY MEAL, BINALOT IN STYLIZED

PRINT AGAINST A BANANA LEAF AND REPRESENTATION OF BINALOT MASCOT

and BINALOT BANANA LEAF WITH BINALOT NAME INSCRIBED IN THE MIDDLE

WITH THE MASCOT ON THE RIGHT SIDE, that the use or adoption thereof by

Respondent of substantially or confusingly similar trade name t\IID'S EXPRESS

BINALOT has continued to create confusion between the competing marks or signages.

Anyone is likely to be misled by the adoption of the same word and device combination

of BINALOT as against a BANANA LEAF. Hence, Respondent's mark or trade name

NID'S EXPRESS BINALOT or NID'S BINALOT LUGAWAT ATBP lacks the element of

originality to be sufficiently distinctive. Such word and device combination of BINALOT

as against a BANANA LEAF as Complainant's service or trade mark is not one that

would naturally occur to Respondent or any other food trader for that matter to use

and/or conceptualize. The court observed in Philippine Refining Co, Inc., vs. Dir. of

Patents and Sparklets Corp. vs. Walter Kidde Sales Co., 104 F. 2d 396, that "a

trademark is designed to identify the user. But it should be so distinctive and

sufficiently original as to enable those who come into contact with it to recognize

instantly the identity of the user. It must be affirmative and definite, significant and

distinctive, capable to indicate the origin." Likewise, our trademark law does not

require identity, confusion is likely if the resemblance is so close between two

trademarks. Bolstering this observation is the pronouncement by the court in the case

of Forbes, Munn & Co. (Ltd.) vs. Ang San To, 40 Phil. 272, 275 where it stated that the

test was similarity or "resemblance between the two (trademarks) such as would be

likely to cause the one mark to be mistaken for the other. . . . [But] this is not such

similitude as amounts to identity."

In the same vein, confusion as to source or identity of business could arise w~ the use or adoption of the same or substantially similar marks or labels or its COIOrabler

31

imitation. In its Memorandum (page 3) filed on 24 July 2009, Respodent contended in

this wise: "5. Unlike that of complainant's, all of the respondent's outlets are full service

casual dining and stand alone restaurants primarily catering to walk in customers.

motorists. pedestrians or workers of nearby establishments served bY waiters/waitresses

who get their food orders at their respective table. Customers may also take out the

food if they wish to; 6.Complainant's business fast food outlets on the other hand. as

alleged in its complaint are located at shopping malls' food courts and primarily serve the

so called "food to go" items and caters to shoppers and take out orders from office

employees". Presented with a similar problem and situation, the Supreme Court held

in the recent case of McDonald's Corporation and McGeorge Food Industries. Inc. vs.

L.C. Big Mak Burgers. Inc. et. al. G.A. No. 143993, August 18, 2004, that:

Respondents assert that their "Big Mak" hamburgers cater mainly to the low-income group while petitioners' "Big Mac" hamburgers cater to the middle and upper income groups. Even if this is true, the likelihood of confusion of business remains, since the lowincome group might be led to believe that the "Big Mak" hamburgers are the low-end hamburgers marketed by petitioners.

On page 7 of the same Memorandum, Respondent counter-argued that:

"15. CHU for its defense, presented expert evidence to prove that the word "BINALOT" is a generic and/or descriptive Tagalog term. Professor Emilita L. Cruz, a long-time professor of the University of the Philippines and qualified to be an expert in Linguistics and co-author on publications delving on matters in Tagalog language, testified and categorically stated that the word "BINALOT" is GENERIC ".

but the word and device combination or using a BANANA LEAF with the word BINALOT

inscribed at the middle is Complainant's original concept or creation which entitles the

latter to prevent Respondent from using the same word and device combination or using

the word BINALOT alone for food business. The word BINALOT as used by

Complainant is not a generic mark, it is suggestive, hence registrable. What are

suggestive marks? It is a distinction developed in the law whereby a mark which merely

suggested some quality or ingredient of goods was labeled as "suggestive,"

distinguishing it from descriptive marks or even though the mark may tell somethin~

about the goods or services, it is just as likely to conjure up some other, purely arbitrary ~

connotation such as SUGAR & SPICE for baked goods [see Mc earthy on Trademark~

32

and Unfair Competition, Vol. 1., § 11 :20, pp. 388-395 citing Watkins Products, Inc. v.

Sunway Fruit Products, Inc., (1962, CA7) 311 F2d 496]. The word BINALOT as against

a BANANA LEAF may be appropriated by Complainant as its own when used on goods

or services not descriptive of the mark or the service and provided one has acquired

prior use thereof. That by way of illustration, we take the word "COPPERTONE"

which is a very distinctive trademark for a sun tan oil, RAPID-SHAVE for a shaving

cream, MATERNALLY YOURS for maternity clothing store, SEVENTEEN for teen-age

magazines and ORANGE CRUSH for orange drinks. The following popularly known

marks in the Philippines for similar food business demonstrate how marks are

suggestive but not descriptive of the services to which it pertained: KAMAYAN

restaurant, BARRIO FIESTA and THE SINGING COOKS AND WAITERS IHAW-IHAW

KALDE-KALDERO.

Similarly, in Philippine Nut Industry, Inc. vs. Standard Brands Incorporated as aforecited,

G.R. No. L-23035, July 31! 1975 , the Court ruled that:

While it is true that PLANTERS is an ordinary word, nevertheless it is used in the labels not to describe the nature of the product, but to project the source of origin of the salted peanuts contained in the cans.

What added to the confusion is the use of these competing marks on identical orsimilar

services: restaurant or food business. Such an occurrence or circumstance has decisive effect in

determining whether or not there is infringement of Complainant's service or trade marks

"BINALOT & REPRESENTATION OF PINOY MEAL, "BINALOT IN STYLIZED PRINT

AGAINST A BANANA LEAF AND REPRESENTATION OF BINALOT MASCOT and

"BINALOT BANANA LEAF WITH BINALOT NAME INSCRIBED IN THE MIDDLE WITH

THE MASCOT ON THE RIGHT SIDE". In several landmark cases involving violation of

intellectual property rights, the Supreme Court recognized and/or held that even in unrelated or

non-competing interests or goods, there is confusion of business, what more if the goods or

subject merchandise or services are the same? Again citing confusion theory either of business or

goods as echoed in McDonald's Corporation and McGeorge Food Industries, Inc. vs. L.C~

Big Mak Burgers, Inc. et. al. G.A. No. 143993, August 18, 2004, this Bureau is convinc~

that confusion is likely or is bound to result with identical goods or services, thus: / I

33

Since respondents used the "Big Mak" mark on the same goods, i.e. hamburger sandwiches, that petitioners' "Big Mac" mark is used, trademark infringement through confusion ofgoods is aproper issue in this case.

One essential factor that led this Office to tilt the scales of justice in favor of

Complainant is the latter's establishment of prior adoption of the service or trade mark

of BINALOT as against A BANANA LEAF. Priority in use and registration of a service

mark is material in an action for infringement of trademark. An examination of the

documentary evidence confirms Complainant's claim of prior use. Complainant was

incorporated on May 09, 1996 by virtue of SEC registration No. AS096-004883 (Exhibit

"A",Complainant) and on the same year, Complainant applied for the registration of

BINALOT & REPRESENTATION OF PINOY MEAL (Exhibit "B", Complainant) as service

mark with the Intellectual Property Office under Application Serial No. 4-1996-108867

and matured into Certificate of Registration No. 4-1996-108867 on May 30, 2003

(Exhibit "B", Complainant). Complainant presented evidence of its early use of the

word BINALOT as corporate name and service mark with the presentation of the

abovecited registration and incorporation. On its part, Respondent Rafael L. Chu,

owner and/or sole proprietor of NID'S EXPRESS BINALOT testified that it started

operating NID'S EXPRESS BINALOT only in 1998:

Any. SIOSON : Your Affidavit which has been marked as Exhibit "18" and I read, from paragraph 2, "I have been operating my restaurant business since 1998 using the trade style NID'S BII\JALOT, LUGAWAN ATBP., in all my signages, flyers and food menus, beginning with my first outlet at Hilon Building, Rizal Street, Brgy. Paciano, Calamba City in the province of Laguna, where the tagalog word, "Binalot" is commonly and widely used." This trade style NID'S BINALOT LUGAWAN ATBP., is the trade style that you have been USi~,

since you started up to the present? ~

WITNESS: Yes. [TSN, 24 March 2009, p. 19J. ~

x x x I /

34

Our old trademark law requires prior and actual use of the mark before

registration. Rights over trademark accrue from its use. This view finds support in the

case of Sterling Products International. Inc. v. Farbenfabriken Bayer

Actiengesellschaft (27 SCRA 1214 [1969]) where the court ruled : " . . . Adoption

alone of a trademark would not give exclusive right thereto. Such right grows out of

their actual use. . . . ." This Bureau, indeed, finds more weight to prior use, being the

most essential condition to establish trademark infringement, the evidence presented

by Complainant when it offered its articles of incorporation (Exhibit '~", Complainant)

showing the date of incorporation on May 09, 1996. This fact of earlier use was not

successfully disputed and overcome by evidence of the Respondent. Withal, between

1996 and 1998, this Bureau concludes that Complainant, indeed, is the prior user.

Corollary, being the prior user of the service or trade marks "BINALOT &

REPRESENTATIOi'J OF PINOY MEAL, "BINALOT IN STYLIZED PRINT AGAINST A

BAi'JAi'JA LEAF AND REPRESEi'JTATION OF BINALOT MASCOT and "BINALOT

BAi'JAi'JA LEAF WITH BIi'JALOT NAME II\JSCRIBED IN THE MIDDLE WITH THE

MASCOT ON THE RIGHT SIDE" for use on restaurant services , Complainant's act of

preventing Respondent to use or adopt identical or confusingly similar mark or signage

or its colorable imitation thereof as applied to similar services , as it is in this case, is

valid.

It is a basic doctrine in trademark law that goodwill of a business and its symbol,

a trademark, are inseparable. Trademarks have no existence independent of the article

or service in connection with which the mark is used. There is no such thing as property

in a trademark except as a right appurtenant to an established business or trade in

connection with which the mark is employed. [see Mc Carthy on Trademarks and Unfair

Competition, Vol. 1., § 2.07, pp. 34-35 citing United Drug Co. v. Theodore Rectanus Co.,

248 U.S. 90, 63 L. Ed. 141,39 S. Ct. 48 (1918); American Steel Foundries v. Robertson,

269 U.S. 372,70 L. Ed. 317, 46 S. Ct. 160 (1926)J

Under the Intellectual Property Code, trademarks are protected, even prior to or

without registration, against any unlawful acts committed by third parties. Unfair

competition provisions of the Intellectual Property Code state that "any subsequent u~ of the trade name by a third party, whether as a trade name or mark or collective mar~

35

or any such use of a similar trade name or mark, likely to mislead the public, shall be

deemed unlawful" [see Sees. 165.2(a) and (b), R.A. 8293J.

Respondent's acts are clear acts of unfair competition, prohibited under Sections

168.2 and 168.3 of R.A. 8293 which provide:

"168.2 Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefore.

"168.3 In particular, without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition:

(a) Any person who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor engaged in selling such goods with a like purpose;

(b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; xxx"

The records do not find any evidence that would legally justify Respondent's

unauthorized use of the disputed service mark NID'S EXPRESS BII\JALOT or NID'S

BINALOT LUGAWAI\J ATBP or the word BII\JALOT alone for its food business. That

Complainant is the prior user of the service or trade mark BII\JALOT as against A

BAI\JAI\JA LEAF or the word BINALOT alone for use on food business has been

established from the foregoing. There was no other name by which Complainant's

service or product could have been identified, insofar as the public is concerned.

Undoubtedly, the subject servicemark BII\JALOT as against a BANANA LEAF serve~ as the source identifier. The service or trade marks "BINALOT & REPRESENTATIO~

36

OF PINOY MEAL, "BINALOT IN STYLIZED PRINT AGAINST A BANANA LEAF AND

REPRESENTATION OF BINALOT MASCOT and "BINALOT BANANA LEAF WITH


SIDE" have come to symbolize the goodwill of Complainant 's food or restaurant

business. It has therefore acquired goodwill of considerable value through continued

use.

As owner and prior user of the subject marks, Complainant has proprietary rights

thereto, which include, among others, the right to exclude third parties such as

Respondent herein from the unauthorized use of NID'S EXPRESS BINALOT or NID'S

BINALOT LUGAWAN ATBP. To permit Respondent to continue using a colorable

imitation of the same service mark for use on similar goods or services would result in

confusion as to source of goods or service and diversion of sales to Respondent.

Thus, the facts of the instant case so closely resemble the circumstances

obtaining in the case of Philippine Nut Industry, Inc. vs. Standard Brands Incorporated,

G.A. No. L-23035, july 31, 1975, that the application of the ruling in said case to the

one at bar becomes unavoidable and compelling. The Supreme Court ruled, thus:

Admittedly, no producer or manufacturer may have a monopoly of any color scheme or form of words in a label. But when a competitor adopts a distinctive or dominant mark or feature of another's trademark and with it makes use of the same color ensemble. employs similar words written in a style. type and size of lettering almost identical with those found in the other trademark, the intent to pass to the public his product as that of the other is quite obvious.

Likewise, passing off is defined in the case of Alhambra Cigar and Cigarette

Manufacturing Co vs. Pedro Mojica, G.R. No. 8937, March 21, 1914 to be in this wise:

Unfair competition consist in passing off or attempting to pass of upon the public the goods or business of one person as and for upon the public the goods or business of one person as and for the goods or business o~ another. Any conduct the end and probable effect of which is to deceive ~ the public or pass off the goods or business of one person as and for tha~ of another constitutes actionabie unfair competition. I ~

37

Taking into account that hundreds of words may be appropriated by Respondent

without causing even the slightest hint of confusion, why would it pick a similar word and

device combination if it has no intention of benefiting from the goodwill already

established by Complainant's service or trade marks. Noteworthy to mention are

Supreme Court decisions on the matter. The Supreme Court in a long line of cases

ruled:

''Those who desire to distinguish their goods from the goods of another have a

broad field from which to select a trademark for their wares and there is no such

poverty in the English language or paucity of signs, symbols, numerals etc. as to

justify one who really wishes to distinguish his product from the other entering the

twilight zone of or field already appropriated by another" (Weco Products Co.,

Milton ray Co., 143 F. 2d. 985, 32 C.C.PA Patents 1214).

"why of the millions of terms and combinations of letters and designs available, the appellee had to choose those so closely similar to another's trademark if there was no intent to take advantage of the goodwill generated by the other mark" (American wire & cable Co., vs. dir. Of Patents 321 SCRA 544).

Having thoroughly discussed the issues and having found the acts of

Respondent as constitutive of trademark infringement and unfair competition, this

Bureau now turns its attention on the other reliefs sought by Complainant, the

determination of damages that may have been suffered as a consequence of

Respondent's acts of unfairly competing and infringing Complainant's service or trade

marks. Regarding damages for trademark infringement and acts of unfair competition,

sections 156, 157 and 168.4 of R.A. 8293 are the points in law and this Bureau's basis

for the award.

Section 156.1 of R.A. 8293 provides:

"Sec. 156. Actions and Damages and Injunction for Infringement156.1. The owner of a registered mark may recover damages from any;;::] person who infringes his rights, and the measure of the damages suffered ~

shall be either the reasonable profit which the complaining party WOUI~ phave made, had the defendant not infringed his rights, or the profit theft

38

I

defendant actually made out of the infringement, or in the event such measure of damages cannot readily be ascertained with reasonable certainty, then the court may award as damages a reasonable percentage based on the amount of gross sales of the defendant or the value of services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party."

Section 157.1 provides:

"Sec. 157. Power of the Court to Order Infringing Material Destroyed. In any action arising under this Act, in which a violation of any right of the owner of the registered mark is established, the court may order that the goods found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or destroyed; all labels, signs, prints, packages, wrappers, receptacles, and advertisements in the possession of the defendant, bearing the registered mark or trade name or any reproduction, counterfeit or colorable imitation thereof, all plates, molds, matrices and other means of making the same, shall be delivered up and destroyed.

In this case, Complainant has presented to this Office sufficient basis to measure actual

damages. There was evidence to show that Complainmant suffered losses during the

period of Respondent's actual operation of NID'S EXPRESS BINALOT or NID'S

BlNALOT LUGAWAN ATBP. with 10 branches operating in some parts of Metro Manila

and the provinces of Laguna and Batangas (paragraph 16 of Respondent's Answer filed

on January 08, 2008), (Exhibits "88" to "CC-3", Complainant). Complainant too is

entitled to exemplary damages for the specific acts of infringement and unfair

competition as thoroughly discussed and passed upon in the foregoing. Regarding

attorney's fees, the same may be recovered.

Under Section 10.2(b) of R.A. 8293, the Bureau of Legal Affairs has also been

authorized to impose one or more of the following administrative penalties, in cases

where a party has been found to violate intellectual property laws, to wit:

"10.2 (b) After formal investigation, the Director of Legal Affairs may impose one (1) or more of the following administrative penalties:

(i) The issuance of a cease and desist order which shall specify the act~ which the respondent shall cease and desist from and shall require him to sUbm~

a compliance report within a reasonable time which shall be fixed in the order; / /

39

(ii) The acceptance of a voluntary assurance of compliance or discontinuance as may be imposed. Such voluntary assurance may include one or more of the following:

(1) An assurance to comply with the provisions of the intellectual property law violated;

(2) An assurance to refrain from engaging in unlawful and unfair acts and practices subject of the formal investigation;

(3) An assurance to recall, replace, repair or refund the money value of defective goods distributed in commerce; and

(4) An assurance to reimburse the complainant the expenses and costs incurred in prosecuting the case in the Bureau of Legal Affairs.

The Director of the Bureau of Legal Affairs may also require the respondent to submit periodic compliance reports and file a bond to guarantee compliance of his undertaking .

(iii) The condemnation or seizure of products which are subjects of the offense. The goods seized hereunder shall be disposed of in such a manner as may be deemed appropriate by the Director of Legal Affairs, such as by sale, donation to distressed local governments or to charitable or relief institutions, exportation, recycling into other goods, or any combination thereof, under such guidelines as he may provide;

(iv) The forfeiture of paraphernalia and all real and personal properties which have been used in the commission of the offense;

(v) The imposition of administrative fines in such amounts as deemed reasonable by the Director of Legal Affairs, which shall in no case be less than Five Thousand Pesos (P5,OOO) nor more than One Hundred Fifty Thousand Pesos (P150,OOO). In addition, an additional fine of not more than One Thousand Pesos (P1,OOO) shall be imposed for each day of continuing violation;

ei (vi) The cancellation of any permit, license, authority or registration which

may have been granted by the Office, or the suspension of the validity thereof for such a period of time as the Director of Legal Affairs may deem reasonable which shall not exceed one (1) year;

(vii) The withholding of any permit, license, authority, or registration which is being secured by the respondent from the Office;

(viii) The assessment of damages;

(ix) Censure; and ~

(x) Other analogous penalties or sanctions~

40

v

WHEREFORE, in view of the foregoing, this Bureau finds that Respondent's

acts of using a mark, business or tradename that constitutes a colorable imitation of

Complainant's service or trademarks for use on the same food business to be acts of

infringement and unfair competition against Complainant. Respondent is hereby

permanently enjoined to cease and desist from using the subject mark, business or trade

name BINALOT as against a BANANA LEAF or BINALOT alone or any variations

thereof in its food business . Respondent is, likewise, ordered to deliver to this Bureau

for destruction any and all labels, signs/signages, prints, packages, wrappers,

receptacles, and advertisements in the possession of the Respondent, bearing the

aforesaid mark, business or trade name BINALOT as against a BANANA LEAF or

BINALOT alone within fifteen (15) days from receipt of this Decision and ordering

Respondent to pay Complainant:

1. the amount of One Million (Php 1,000,000.00) Pesos as actual

damages; and

2. the amount of Two Hundred Thousand (Php 200,000.00) Pesos as

exemplary damages;

3. the amount of One Hundred Fifty Thousand (Php 150,000.00) Pesos as

attorney's fees.

SO ORDERED.

Makati City, November 27,2009.

EST E UTA BELTRAN-ABELARDO~ Dire tor, Bureau of Legal Affairs

41

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