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Persida Acosta

Dear PAO,
My daughter was arrested for violating Section 15 (Use of Dangerous Drugs) of the Comprehensive Dangerous Drugs Act of 2002. The police operatives allegedly saw my daughter using shabu when she was arrested. However, she was never subjected to a drug test. She has no criminal record and was never charged with any crime or offense. Can my daughter be held criminally liable for using shabu? If proven guilty, what is the imposable penalty for the said offense?
Victor

Dear Victor,
To answer your questions, we shall refer to Section 15, Article II of the Republic Act (RA) 9165 or the “Comprehensive Dangerous Drugs Act of 2002.”

“Section 15. Use of Dangerous Drugs — A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six years and one day to 12 years and a fine ranging from P50,000 to P200,000.”

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The Supreme Court in the case of Jaime D. Dela Cruz vs People of the Philippines (GR 200748, July 23, 2014), through Chief Justice Maria Lourdes Sereno discussed use of illegal drugs, to wit: “The elements of Section 15 are as follows: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he used a dangerous drug.”

The penalty for first time offenders of drug use is a minimum of six months rehabilitation in a government center, provided that there is a positive confirmatory test result, as required under Section 15 of the said law. Applying the same law in your situation, your daughter would not be held criminally liable for violating Section 15 of Article II of RA 9165, since she was never subjected to a drug test when she was arrested. Lastly, there was also no confirmatory test showing that your daughter used a dangerous drug.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
I arrived in the Philippines in January this year after staying in London for 20 years. A good friend of mine recently talked to me, and wanted to borrow P500,000 from me. To secure her obligation, my friend executed a real estate mortgage over a parcel of land in Makati City and gave me the original copy of the transfer certificate of title. I have already prepared a contract of loan, and I want to have it notarized. I was advised by my friend that we both need to present a valid identification card to the lawyer who will notarize the said contract. Can we present our senior identity cards?
Norma
Dear Norma,
To answer your question, we shall refer to Administrative Matter 02-8-13-SC (2004 Rules on Notarial Practice), which states that:
“SECTION 6. Jurat. — “Jurat” refers to an act in which an individual on a single occasion:
“(a) appears in person before the notary public and presents an instrument or document;
“(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules;
“(c) signs the instrument or document in the presence of the notary; and
“(d) takes an oath or affirmation before the notary public as to such instrument or document.
“xxx
“SECTION 12. Component Evidence of Identity. The phrase “competent evidence of identity” refers to the identification of an individual based on:
“(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulations Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System e-card, Social Security System card, PhilHealth card, senior citizen card, Overseas Workers Welfare Administration ID, OFW (overseas Filipino worker) ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled, Department of Social Welfare and Development certification (as amended by A.M. No. 02-8-13-SC); or
“(b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.” (Emphases supplied)
Applying the foregoing law in your situation, it is clear that a senior citizen card is a competent proof of identity recognized in the 2004 Rules on Notarial Practice. The law requires that the component evidence of identity must be issued by an official agency, and must bear the signature and photograph of the individual. Hence, you and your friend can present your senior citizen cards as proof of your identity.
We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
I was hired as an operations manager of a marketing company in January 2015. Subsequently, I received a notice from the management that they were terminating my service on the ground of redundancy. I was given two weeks to finish all my work, and to turn over my upcoming projects to our country manager. I went to the Department of Labor and Employment (DoLE) and reported to them my dismissal from my former company. The employee from DoLE told me that my former company failed to send them any written notice prior to my dismissal. Last week, I found out that my former employer hired four operations managers two weeks after my termination. Did my former employer validly dismiss my service on the ground of redundancy?
Charlie

Dear Charlie,
We shall refer to the Labor Code of the Philippines which contains a provision that specifically applies to your question, to wit:

“Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor- saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one month pay or to at least one month pay for every year of service, whichever is higher. xxx” (Emphasis supplied)

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It is clear from this cited provision that there must be a written notice sent to the employee and to DoLE at least one month prior to the intended date of the dismissal of the employee. In the case of Ocean East vs. Lopez (GR 194410, Oct. 14, 2015), the Supreme Court Associate Justice Diosdado Peralta stated:

“For the implementation of a redundancy program to be valid, the employer must comply with these requisites: (1) written notice served on both the employee and the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; (3) good faith in abolishing the redundant positions; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished.” (Emphasis supplied)

Applying the above-mentioned decision in your situation, your former employer violated Article 283 of the Labor Code. No written notice was sent to DoLE a month prior to your dismissal. You were also not given a separation pay for the services you rendered to the said marketing company since 2015. Moreover, it cannot be said that your termination on the ground of redundancy was made in good faith since four new operations managers were hired after your separation from the company. Clearly, it failed to comply with all of the requisites for a valid implementation of a redundancy program, thereby making it liable for your illegal dismissal.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
I wanted to help my brother financially, so we decided to outsource raw to simply processed meat products using my savings worth P1.5 million that came from my overseas employment for the past five years. We imported the meat from a nearby country using documents from a nongovernment organization he set up before. We never trampled on anyone’s rights for our business, which fortunately boomed in our area. But I was informed by a friend that we were allegedly committing a crime. Is this true?
Carlo

Dear Carlo,
Republic Act 10845 or the “Anti-Agricultural Smuggling Act of 2016” applies in your situation. The law clearly provides:

“SECTION. 3. Large-Scale Agricultural Smuggling as Economic Sabotage. — The crime of large-scale agricultural smuggling as economic sabotage, involving sugar, corn, pork, poultry, garlic, onion, carrots, fish and cruciferous vegetables, in its raw state, or which have undergone the simple processes of preparation or preservation for the market, with a minimum amount of one million pesos (P1, 000, 000), or rice, with a minimum amount of ten million pesos (P10, 000, 000), as valued by the Bureau of Customs, is committed through any of the following acts:

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“xxx

“(f) Organizing or using dummy corporations, nongovernment organizations, associations, cooperatives or single proprietorship for the purpose of acquiring import permits….” (Emphasis supplied)

Considering the said provision, you and your brother may be held liable for the crime of large-scale agricultural smuggling as economic sabotage, as described above, should you use the nongovernment organization as a dummy organization for the purpose of obtaining import permits. The possible penalty for violation thereof, based on Section 4(a) of the law is:

“SECTION 4. Penalties. — (a) The penalty of life imprisonment and a fine of twice the fair value of the smuggled agricultural product and the aggregate amount of the taxes, duties and other charges avoided shall be imposed on any person who commits any of the acts enumerated under Section 3 of this Act [….]”

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We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
My father was a former member of the law enforcement agency of the government. Five years before his retirement, he was administratively charged for a certain offense and eventually found guilty. He was dismissed in 2009. My father was so sad about the outcome of the case; hence, he did not appeal the decision of the disciplinary authority. In 2018, I met one of his co-workers who retired from service, and he told me that my father should have filed a petition for administrative clemency because if the same would be granted, my father would eventually receive all his retirement benefits. I relayed this matter to my father but he claimed that executive clemency applies only to criminal cases and not to administrative cases. Is this true?
Crimson

Dear Crimson,
The statement of your father is partially correct. Executive clemency or pardon may be granted by the President of the Republic of the Philippines not only to persons convicted of criminal cases, but also to those found guilty of administrative cases under the Executive Branch of the government. This is in consonance with Section 19, Article VII of the 1987 Philippine Constitution, which provides that “except in case of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with concurrence of a majority of all the Members of the Congress”.

This finds support also in the decision of the case of Llamas vs. Executive Secretary Oscar Orbos and Mariano Un Ocampo, III (GR 99031, Oct. 15, 1991), where the Supreme Court through Associate Justice Edgardo Paras stated that:

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“It is evident from the intent of the Constitutional Commission, therefore, that the President’s executive clemency powers may not be limited in terms of coverage, except as already provided in the Constitution, that is, “no pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the Comelec” (Article IX, C, Section 5, Constitution). If those already adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise be extended the same benefit.

“In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt, but the Constitution grants to the President the power to pardon the act done by the proved criminal and in the process exempts him from punishment therefor. On the other hand, in administrative cases, the quantum of evidence required is mere substantial evidence to support a decision, not to mention that as to the admissibility of evidence, administrative bodies are not bound by the technical and rigid rules of admissibility prescribed in criminal cases. It will therefore be unjust and unfair for those found guilty administratively of some charge if the same effects of pardon or executive clemency cannot be extended to them, even in the sense of modifying a decision to subserve the interest of the public. (p. 34, Comment of public respondent).”

Applying the above-quoted decision in your situation, the power of the President to grant executive clemency is not limited to criminal cases. The limitation provided under Section 9, Article VII of the 1987 Constitution are impeachment and violation of election laws, rules and regulation which can only be granted upon a favorable recommendation of the Commission on Elections (Comelec). Thus, the President may also grant executive clemency to those found guilty of administrative charges since it would be unjust and unfair if the effects of pardon or executive clemency cannot be extended to them.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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Persida Acosta

Dear PAO,
I bought a certain land from Arman, who is authorized by his brother (owner) to sell his property. After the execution of the Deed of Absolute Sale, Arman surrendered to me the owner’s duplicate of title and allowed me to occupy the land. When I tried to register the Deed of Sale, the Register of Deeds told me to present a Special Power of Attorney executed by the owner authorizing Arman to sell the land. Unfortunately, the owner was out of the country, but Arman and the owner assured me that they would execute the document when the owner comes back. I executed an Affidavit of Adverse Claim and had it registered with the Register of Deeds to protect my interest. I discovered after a year that the owner filed a Petition for Reconstitution of Title, which was granted by the court. There are now two existing copies of the owner’s duplicate of title, which one is valid?
Dracary

Dear Dracary,
Only lost or destroyed title shall be reconstituted. This is in consonance with Section 1 of Republic Act 26 or “An Act Providing a Special Procedure for the Reconstitution of Torrens Certificates of Title (TCT) Lost or Destroyed.” The certificate of title in your possession is valid, while the reconstituted title is void.

In Sebastian vs Spouses Cruz and Register of Deeds for the Province of Pangasinan (GR 220940, March 20, 2017), the Supreme Court through Associate Justice Estela Perlas Bernabe stated that:

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“As early as the case of Strait Times Inc. vs CA (Court of Appeals), the court has held that when the owner’s duplicate certificate of title has not been lost, but is, in fact, in the possession of another person, then the reconstituted certificate is void, because the court that rendered the decision had no jurisdiction. Reconstitution can be validly made only in case of loss of the original certificate. This rule was reiterated in the cases of Villamayor vs Arante, Rexlon Realty Group Inc. vs [CA], Eastworld Motor Industries Corp. vs Skunac Corp., Rodriguez vs Lim, Villanueva vs Viloria, and Camitan vs Fidelity Investment Corp. Thus, with evidence that the original copy of the TCT was not lost during the conflagration that hit the Quezon City Hall and that the owner’s duplicate copy of the title was actually in the possession of another, the RTC decision was null and void for lack of jurisdiction.
“x x x

“In reconstitution proceedings, the Court has repeatedly ruled that before jurisdiction over the case can be validly acquired, it is a condition sine qua non that the certificate of title has not been issued to another person. If a certificate of title has not been lost but is in fact in the possession of another person, the reconstituted title is void and the court rendering the decision has not acquired jurisdiction over the petition for issuance of new title. The courts simply have no jurisdiction over petitions by (such) third parties for reconstitution of allegedly lost or destroyed titles over lands that are already covered by duly issued subsisting titles in the names of their duly registered owners. The existence of a prior title ipso facto nullifies the reconstitution proceedings. The proper recourse is to assail directly in a proceeding before the regional trial court the validity of the Torrens title already issued to the other person.”

Applying the above-cited decision in your situation, the court that issued the reconstituted title has no jurisdiction over the petition for reconstitution filed by the owner. It is a condition sine qua non that the title has not been issued to another person before the court can acquire jurisdiction over the petition. According to Black’s Law Dictionary, sine qua non refers to “a thing that is absolutely indispensible or essential.” In this case, the owner’s duplicate was delivered to you because of the sale, which you entered with the owner or his representative Arman; hence, the same cannot be considered as lost. The existence of the previous title in your possession nullifies the reconstitution proceedings.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
My older brother passed away five years ago, leaving his two sons behind. Because of a severe family problem, he disinherited one of his sons. My disinherited nephew had a child, who was born around two years ago. My nephew’s family is now wondering if they could still claim from the estate of my older brother for the latter’s grandchild. They are claiming that while my nephew was disinherited, his son could still claim from his grandfather’s estate by virtue of the right of representation. Is there a legal basis to this? Can this grandchild claim inheritance from his late grandfather?
Armentina

Dear Armentina,
To answer your question, we have to look into the provisions pertaining to the legal concept of representation in succession laws. Under Article 970 of the Civil Code of the Philippines it is provided that:

“Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.”

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Generally speaking, a grandchild of the decedent has the right to represent the latter’s child since they are within the direct descending line. (Article 972) Applying this concept of right of representation to your deceased brother’s situation, it may appear that the child of his disinherited son can succeed from him. However, the law on succession further qualifies that in order for the right of representation to take place, the representative himself must be capable of succeeding the decedent. (Article 973) This is where another provision of the Civil Code comes into play, to wit:

“Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

“A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n)”

Based from this provision, the representative successor should be alive or at least conceived at the time of the decedent’s death for him to have capacity to inherit since succession opens at the time of the death of the decedent (Article 777). This provision is in line with the aforementioned requirement that the representative must be capable of succeeding the decedent.

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In your deceased brother’s situation, since the child of his disinherited son was not yet born at the time of his death, then it appears that his grandchild is not capacitated to inherit from him. The child’s right to succeed from his grandfather through the right of representation is negated by the fact of his incapacity to succeed at the time of his grandfather’s death. Because of this, the child cannot inherit from his deceased grandfather.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
Is there a mandate from the government for hospitals to record and report each case of cancer?
Jameel

Dear Jameel,
Yes. On Feb. 14, 2019, President Rodrigo Duterte approved Republic Act (RA) 11215 or the “National Integrated Cancer Control Act,” which under Sections 29 to 30, Article VIII, clearly provides:

“ARTICLE VIII: CANCER REGISTRY AND MONITORING SYSTEM

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“xxx

“SECTION 29. Hospital-Based Cancer Registry. — Every hospital, including clinics, shall have its own cancer registry. The registry must record the personal identification of cancer patients, cancer type, treatment received and its results and other data that the DoH (Department of Health) may prescribe. The regional offices of the DoH shall ensure that all hospitals within their respective jurisdiction have cancer registry. The information shall be treated with utmost confidentiality and shall not be released to third parties, in accordance with RA 10173 or the ‘Data Privacy Act of 2012.’ Submission of the cancer registry data to the DoH shall be a requirement for the renewal of a license to operate of a hospital.

“SECTION 30. Recording and Reporting of Cancer Cases. — Adult and childhood cancer[s] are considered as notifiable disease[s] in all levels of the health care system. Any hospital or clinic which diagnosed a patient with cancer shall report the same to the DoH. The DoH shall provide the form and manner of reporting of cancer cases.” (Emphasis supplied)

Thus, hospitals are mandated to report each case of cancer they may encounter, in the form prescribed by the Health department, as a condition for the renewal of their license.

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We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
My brother worked as an office clerk in a small company for the past four years. Sadly, my brother will soon be unemployed as his company has decided to close its operations next month. However, I recently heard of an unemployment insurance from the new Social Security System law, and I want to know more about this as this might greatly help my brother during the period of his unemployment.
Kaway

Dear Kaway,
The provisions of Section 14-B of the Republic Act No. 11199, otherwise known as the “Social Security Act of 2018,” reads:
“SECTION 14-B. Unemployment Insurance or Involuntary Separation Benefits. — A member who is not over sixty (60) years of age who has paid thirty-six (36) months contributions twelve (12) months of which should be in the eighteen-month period immediately preceding the involuntary unemployment or separation shall be paid benefits in the form of monthly cash payments equivalent to fifty percent (50%) of the average monthly salary credit for a maximum of two (2) months: Provided, further, that in case of concurrence of two or more compensable contingencies, only the highest benefit shall be paid, subject to the rules and regulations that the Commission may prescribe.”

Clearly, a member who became unemployed may avail of the unemployment insurance or involuntary separation benefits under the abovementioned law, provided that said member meets all the mentioned requisites. In your brother’s situation, he may avail of said benefits, considering that his termination from employment was involuntary (due to the closure and cessation of business operations), provided, however, that he meets the other abovementioned requirements subject to the rules and regulations that the Social Security Commission may prescribe.

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We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Persida Acosta

Dear PAO,
I am planning to open a burger-stand business and call it “Burger MakDon” and imitate the design of the logo of a popular food chain to make it appealing. Will I violate any law?
Florendo

Dear Florendo,
For your information, the law that addresses your situation is McDonald’s Corporation vs L.C. Big Mak Burger penned by Associate Justice Antonio Carpio:
In determining likelihood of confusion, jurisprudence has developed two tests, the dominancy test and the holistic test. The dominancy test focuses on the similarity of the prevalent features of the competing trademarks that might cause confusion. In contrast, 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. This Court, however, has relied on the dominancy test rather than the holistic test. The test of dominancy is now explicitly incorporated into law in Section 155.1 of the Intellectual Property Code, which defines infringement as the ‘colourable imitation of a registered mark xxx or a dominant feature thereof.’

“Applying the dominancy test, the Court finds that respondents’ use of the ‘Big Mak’ mark results in likelihood of confusion. Aurally the two marks are the same, with the first word of both marks phonetically the same, and the second word of both marks also phonetically the same. Visually, the two marks have both two words and six letters, with the first word of both marks having the same letters and the second having the same first two letters. In spelling, considering the Filipino language, even the last letters of both marks are the same. Clearly, respondents have adopted in
‘Big Mak’ not only the dominant but also almost all the features of ‘Big Mac.’ Applied to the same food product of hamburgers, the two marks will likely result in confusion in the public mind.” (Emphasis supplied)

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Hence, based on the cited provision, in determining similarities in the logo, the test dominancy shall be used and considered the prevalent features of the competing logos. In your situation, if the prevalent features of your “Burger MakDon” logo shall have similarities with the logo of a popular burger food chain, which would cause the likelihood of confusion to the public, then a finding of trademark infringement may be ruled, which may hold you liable.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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